EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 9th day of December, 2002, by and among
FREEDOM BANCSHARES, INC., a bank holding company incorporated under the laws of
the State of Georgia (the "Company"); FREEDOM BANK OF GEORGIA, (In
Organization), a proposed state bank being organized under the laws of the State
of Georgia (the "Bank") (collectively, the Company and the Bank are referred to
hereinafter as the "Employer"); and XXX X. XXXXXX, a resident of the State of
Alabama (the "Executive").
RECITALS:
The Employer desires to employ the Executive as President and Chief
Executive Officer of the Company and the Bank 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
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits
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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
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Xxxxxxx County, 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 Employer under this Agreement as of the Effective Date.
1.3 "BEGINNING DATE" shall mean November 1, 2002.
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1.4 "BUSINESS OF THE EMPLOYER" shall mean the business conducted by
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the Employer, which is the business of commercial banking.
1.5 "CAUSE" shall mean:
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1.5.1 With respect to termination by the Employer:
(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, which
remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the
Executive by the Employer. Such notice shall (i) specifically
identify the duties that the Board of Directors of the Company or
the Bank believes the Executive has failed to perform and (ii)
state the facts upon which such determination is made;
(b) Conduct by the Executive that amounts to fraud,
dishonesty, disloyalty 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 Term of a crime involving breach of trust or
moral turpitude or any felony;
(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 Employer pursuant
to a written order by any regulatory agency with authority or
jurisdiction over the Employer.
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
Employer, which remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the Employer by
the Executive.
1.6 "CHANGE OF CONTROL" means any one of the following events:
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(a) the acquisition by any person or persons acting in concert of the
then outstanding voting securities of either the Company or the Bank if,
after the transaction, the acquiring person or persons owns controls or
holds the power to vote fifty percent (50%) or more of any class of voting
securities of the Company or the Bank;
(b) within any twelve-month period (beginning on or after the
Effective Date), the persons who were directors of either the Company or
the Bank immediately before the beginning of such twelve-month period (the
"Incumbent Directors") shall cease to constitute at least a majority of
such Board of Directors; provided that any director who was not a director
as of the beginning of such twelve-month period shall be deemed to be an
Incumbent Director if that director were elected to such Board of Directors
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 relating to the
election of directors shall be deemed to be an Incumbent Director;
(c) a reorganization, merger, share exchange combination or
consolidation, with respect to which persons who were the stockholders of
either the Company or the Bank immediately prior to such reorganization,
merger, share exchange combination 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,
combined or consolidated company's then outstanding voting securities; or
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(d) the sale, transfer or assignment of all or substantially all of
the assets of the Company or the Bank to any third party.
1.7 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Employer (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 Employer and which has value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been 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
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each of his material duties under this Agreement for the duration of the
short-term disability period under the Employer's policy then in effect as
certified by a physician chosen by the Employer and reasonably acceptable to the
Executive.
1.9 "EFFECTIVE DATE" shall mean the date the Bank opens for business.
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1.10 "EMPLOYER INFORMATION" means Confidential Information and Trade
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Secrets.
1.11 "INITIAL TERM" shall mean that period of time commencing on the
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Beginning Date and running until the earlier of the close of business on the
last business day immediately preceding the third anniversary of the Beginning
Date or any earlier termination of employment of the Executive under this
Agreement as provided for in Section 3.
1.12 "TERM" shall mean the Initial Term and all subsequent renewal
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periods.
1.13 "TRADE SECRETS" means Employer information including, but not
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limited to, technical or nontechnical data, formulas, patterns, compilations,
programs, devices, methods, techniques, drawings, processes, financial data,
financial plans, 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.
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2.1 POSITION. The Executive is employed as President and Chief Executive
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Officer of the Company and the Bank and, subject to the direction of the Board
of Directors of the Company and the Bank or the applicable Board's designee(s),
shall perform and discharge well and faithfully the duties which may be assigned
to him from time to time by such Board of Directors in
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connection with the conduct of the Employer's business. The duties and
responsibilities of the Executive are set forth on Exhibit "A" attached hereto.
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2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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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;
(b) diligently follow and implement all reasonable and lawful
financial policies and decisions communicated to him by the Board of
Directors of the Company and the Bank; and
(c) timely prepare and forward to the Board of Directors of the
Company and the Bank all reports and accountings as may be requested of the
Executive.
2.3 PERMITTED ACTIVITIES. The Executive shall devote his entire
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business time, attention and energies to the Business of the Employer 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 businesses which (subject to
clause (b) below) are not in competition with the Business of the Employer
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, the securities of which
are regularly traded provided that such purchase shall not result in him
collectively owning beneficially at any time five percent (5%) or more of
the equity securities of any business in competition with the Business of
the Employer; 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 Company or the Bank approves in
writing of such activities prior to the Executive's engaging in them.
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Initial
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Term. At the end of the Initial Term and at the end of each twelve-month
extension thereof, this Agreement shall automatically be renewed for a
successive twelve-month period unless either party gives written notice to the
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other of its or his intent not to renew this Agreement with such written notice
to be given not less than ninety (90) days prior to the end of the Initial Term
or such twelve-month period. In the event such notice of non-renewal 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
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this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) In the event that the Bank fails to receive its regulatory
charter, or the Company fails to raise the necessary capital required
to open the Bank, and should the Company's or the Bank's Board of
Directors decide to forgo future efforts to open the Bank, in which
event the Employer shall be required to continue to meet its
obligation to the Executive under Section 4.1 for twelve (12) months
following the effective date of termination;
(b) For Cause, upon written notice to the Executive pursuant to
Section 1.5.1 hereof, in which event the Employer shall have no
further obligation to the Executive except for the payment of any
amounts due and owing under Section 4 on the effective date of
termination;
(c) Without Cause at any time, provided that the Employer shall
give the Executive thirty (30) days' prior written notice of its
intent to terminate, in which event the Employer shall be required to
continue to meet its obligations to the Executive under Section 4.1
for the greater of (i) the remainder of the Term or (ii) twelve (12)
months following the effective date of termination; or
(d) Upon the Disability of the Executive at any time, provided
that the Employer shall give the Executive thirty (30) days' prior
written notice of its intent to terminate, in which event, for six (6)
months following the effective date of termination or until the
Executive begins receiving payments under the long-term disability
policy maintained for the employees of the Company and/or the Bank, if
any, whichever occurs first, the Employer shall be required to
continue to meet its obligations under Sections 4.1.
3.2.2 By the Executive:
(a) For Cause, upon written notice to the Employer pursuant to
Section 1.5.2 hereof, in which event the Employer shall be required to
continue to meet its obligations to the Executive under Section 4.1
the greater of (i) the remainder of the Term or (ii) twelve (12)
months following the effective date of termination; or
(b) Without Cause, provided that the Executive shall give the
Employer sixty (60) days' prior written notice of his intent to
terminate, in which event the Employer shall have no further
obligation to the Executive except for payment of any amounts due and
owing under Section 4 on the effective date of the termination.
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3.2.3 At any time upon mutual, written agreement of the parties, in
which event the Employer shall have no further obligation to the Executive
except for payment of amounts due and owing under Section 4 on the
effective date of termination.
3.2.4 Notwithstanding anything in this Agreement to the contrary, the
Term shall end automatically upon the Executive's death, in which event the
Employer shall have no further obligation to the Executive's estate except
for payment of amounts due and owing under Section 4 on the date of the
Executive's death.
3.3 CHANGE OF CONTROL. If, within six (6) months following a Change of
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Control, the Executive terminates his employment with the Employer under this
Agreement for Cause or the Employer terminates Executive's employment without
Cause, the Executive, or in the event of his subsequent death, his designated
beneficiaries or his estate, as the case may be, shall receive, as liquidated
damages, in lieu of all other claims, a lump sum severance payment equal to the
amount of the Executive's current Base Salary that would be payable over a
period equal to the greater of (i) the remainder of the Term or (ii) twelve (12)
months following the effective date of termination, to be paid in full on the
last day of the month following the effective date of termination. In no event
shall the payment(s) described in this Section 3.3 exceed the amount permitted
by Section 280G of the Internal Revenue Code, as amended (the "Code").
Therefore, if the aggregate present value (determined as of the date of the
Change of Control in accordance with the provisions of Section 280G of the Code)
of both the severance payment and all other payments to the Executive in the
nature of compensation which are contingent on a change in ownership or
effective control of the Company or the Bank or in the ownership of a
substantial portion of the assets of the Company or the Bank (the "Aggregate
Severance") would result in a "parachute payment," as defined under Section 280G
of the Code, then the Aggregate Severance shall not be greater than an amount
equal to 2.99 multiplied by Executive's "base amount" for the "base period," as
those terms are defined under Section 280G of the Code. In the event the
Aggregate Severance is required to be reduced pursuant to this Section 3.3, the
Executive shall be entitled to determine which portions of the Aggregate
Severance are to be reduced so that the Aggregate Severance satisfies the limit
set forth in the preceding sentence. Notwithstanding any provision in this
Agreement, if the Executive may exercise his right to terminate employment under
this Section 3.3 or under Section 3.2.2(a), the Executive may choose which
provision shall be applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's employment
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hereunder for any reason, the Employer shall have no further obligations to the
Executive or the Executive's estate with respect to this Agreement, except for
the payment of any amounts accrued or otherwise due and owing under Section 4
hereof and unpaid as of the effective date of the termination of employment and
payments set forth in Sections 3.2.1(a), (c) and (d), Section 3.2.2(a), or
Section 3.3 as applicable.
4. COMPENSATION. The Executive shall receive the following salary and
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benefits during the Term, except as otherwise provided below:
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4.1 BASE SALARY. The Executive shall be compensated at an annual base
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rate of $135,000 (the "Base Salary"). The obligation for payment of Base Salary
shall be apportioned between the Company and the Bank as they may agree from
time to time in their sole discretion. The Executive's Base Salary shall be
reviewed by the non-employee directors of the Board of Directors of the Company
and the Bank (the "Outside Directors") at least annually, and the Executive
shall be entitled to receive annually an increase in such amount, if any, as may
be determined by the Outside Directors based on their evaluations of the
Executive's performance. Any increase in the Executive's Base Salary shall be
generally at least equal to any increase received by other officers similarly
situated to the Executive. Base Salary shall be payable in accordance with the
Employer's normal payroll practices, except that, Base Salary earned by the
Executive for the months of November and December of 2002 shall be accrued and
payable to the Executive as of the first payroll period in January of 2003.
4.2 INCENTIVE COMPENSATION. The Executive shall be eligible to receive
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annual bonus compensation (the "Annual Bonus") in an amount equal to up to fifty
percent (50%) of the Executive's Base Salary, which amount shall be determined
based on performance goals established by the Board of Directors of the Company
and the Bank; provided, however, that the Executive shall only be entitled to an
Annual Bonus if the Bank has a CAMELS rating of 1 or 2 for the year to which the
Annual Bonus relates. Any Annual Bonus will be payable within ninety (90) days
following the last day of the calendar year for which such Annual Bonus is
earned.
4.3 STOCK OPTIONS. As soon as practicable after the date hereof, the
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Company will establish a stock incentive plan and will grant to the Executive an
incentive stock option to purchase 20,000 shares of the Company's common stock
at an exercise price of $10.00 per share. The option will be issued by the
Company pursuant to the Company's stock incentive plan and subject to the terms
of a related stock option agreement. The option will vest according to the
vesting schedule set forth in the applicable stock option agreement. Upon a
Change of Control, the option will become fully vested and exercisable, subject
to restrictions as may be imposed by the Bank's primary regulator. The option
shall expire generally upon the earliest of (i) three (3) months following the
Executive's termination of employment; (ii) one (1) year following the
Executive's termination of employment due to death or disability; or (iii) the
tenth anniversary of the option grant date.
4.4 AUTOMOBILE. The Employer will provide the Executive with a monthly
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automobile allowance equal to $650 per month.
4.5 HEALTH INSURANCE. The Employer will reimburse the Executive for
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the cost of premium payments paid by the Executive for COBRA continuation health
insurance coverage covering the Executive and the members of his immediate
family as offered by the Executive's prior employer until such time as the
Executive and the members of his immediate family are no longer eligible for
COBRA continuation health insurance coverage or the Company or the Bank, as
applicable, adopts a health insurance plan for employees of the Company and/or
the Bank, whichever occurs first.
4.6 RELOCATION EXPENSES. The Employer agrees to reimburse the Executive
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for reasonable and necessary moving expenses incurred in connection with the
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Executive's relocation to the Xxxxxxx County, Georgia area in an amount not to
exceed $4,500. In addition, for a period of up to six (6) months following the
Beginning Date, the Employer will reimburse the Executive for reasonable and
necessary temporary living expenses (including, but not limited to rent and
utility expenses) incurred by the Executive in the Xxxxxxx County, Georgia area
in an amount not to exceed $400 per week. As a condition to reimbursement
pursuant to this Section, the Executive shall submit verification of the nature
and amount of such expenses in accordance with reimbursement policies from time
to time adopted by the Employer and in sufficient detail to comply with rules
and regulations promulgated by the Internal Revenue Service. The Executive
acknowledges that the Employer has made no representations concerning the
taxability or nontaxability of any of the reimbursements contemplated by this
Section 4.6.
4.7 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees
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to reimburse the Executive for:
(a) reasonable and necessary business expenses (including travel)
incurred by him in the performance of his duties as approved by the Board
of Directors of the Company and/or the Bank;
(b) the reasonable dues and business related expenditures associated
with membership in trade and professional associations, as are mutually
agreed upon by the Executive and the Employer, which are commensurate with
the Executive's position; and
(c) the dues and business related expenditures, including initiation
fees, associated with membership in a single country club as selected by
the Executive and approved by the Board of Directors of the Company and/or
the Bank;
provided, however, that the Executive shall, as a condition of any
reimbursement, submit verification of the nature and amount of such expenses in
accordance with reimbursement policies from time to time adopted by the Employer
and in sufficient detail to comply with rules and regulations promulgated by the
Internal Revenue Service.
4.8 VACATION. On a non-cumulative basis, the Executive shall be entitled
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to four (4) weeks of vacation in each successive twelve-month period during the
Term, during which his compensation shall be paid in full.
4.9 BENEFITS. In addition to the benefits specifically described in
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this Agreement, the Executive shall be entitled to such benefits as may be
available from time to time to executives of the Employer similarly situated to
the Executive. All such benefits shall be awarded and administered in
accordance with the Employer's standard policies and practices. Such benefits
may include, by way of example only, profit-sharing and retirement plans,
dental, health, life and disability insurance benefits, sick leave and such
other benefits as the Employer deems appropriate.
4.10 WITHHOLDING. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income tax, FICA and other
withholding requirements.
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5. EMPLOYER INFORMATION.
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5.1 OWNERSHIP OF EMPLOYER INFORMATION. All Employer Information
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received or developed by the Executive while employed by the Employer will
remain the sole and exclusive property of the Employer.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) to hold Employer Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Employer Information or any physical embodiments of
Employer Information; and
(c) in any event, not to take any action causing or fail to take any
action necessary in order to prevent any Employer Information from losing
its character or ceasing to qualify as Confidential Information or a Trade
Secret.
In the event that the Executive is required by law to disclose any Employer
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Employer when the Executive becomes aware that such disclosure
has been requested and is required by law. This Section 5 shall survive for a
period of two (2) years following termination of this Agreement for any reason
with respect to Confidential Information, and shall survive termination of this
Agreement for any reason for so long as is permitted by applicable law, with
respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the Employer,
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and in any event upon termination of his employment with the Employer, the
Executive will promptly deliver to the Employer all property belonging to the
Employer, including, without limitation, all Employer Information then in his
possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Employer without Cause pursuant to Section 3.2.1(c),
- by the Executive for Cause pursuant to Section 3.2.2(a),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, either
directly or indirectly, on his own behalf or in the service or on behalf of
others, as an executive employee or in any other capacity which involves duties
and responsibilities similar to those undertaken for the Employer (including as
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an organizer, director or proposed executive officer of a new financial
institution), engage in any business which is the same as or essentially the
same as the Business of the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Employer without Cause pursuant to Section 3.2.1(c),
- by the Executive for Cause pursuant to Section 3.2.2(a),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3
for a period of twelve (12) months thereafter, he will not (except on behalf of
or with the prior written consent of the Employer), within the Area, on his own
behalf or in the service or on behalf of others, solicit, divert or appropriate
or attempt to solicit, divert or appropriate, any business from any of the
Employer's customers, including prospective customers actively sought by the
Employer, with whom the Executive has or had material contact during the last
two (2) years of his employment, for purposes of providing products or services
that are competitive with those provided by the Employer.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
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employment by the Employer hereunder and, in the event of his termination:
- by the Employer for Cause pursuant to Section 3.2.1(b),
- by the Employer without Cause pursuant to Section 3.2.1(c),
- by the Executive for Cause pursuant to Section 3.2.2(a),
- by the Executive without Cause pursuant to Section 3.2.2(b), or
- by the Executive in connection with a Change of Control pursuant to
Section 3.3
for a period of twelve (12) months thereafter, he will not, within the Area, on
his own behalf or in the service or on behalf of others, solicit, recruit or
hire away or attempt to solicit, recruit or hire away, any employee of the
Employer, whether or not:
- such employee is a full-time employee or a temporary employee of the
Employer,
- such employment is pursuant to written agreement, or
- such employment is for a determined period or is at will.
9. REMEDIES. The Executive agrees that the covenants contained in Sections
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5 through 8 of this Agreement are of the essence of this Agreement; that each of
the covenants is reasonable and necessary to protect the business, interests and
properties of the Employer, and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Executive agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants. The Employer and the Executive
agree that all remedies available to the Employer or the Executive, as
applicable, shall be cumulative.
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10. SEVERABILITY. The parties agree that each of the provisions included in
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this Agreement is separate, distinct and severable from the other provisions of
this Agreement and that the invalidity or unenforceability of any Agreement
provision shall not affect the validity or enforceability of any other provision
of this Agreement. Further, if any provision of this Agreement is ruled invalid
or unenforceable by a court of competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with, and valid and
enforceable under, the law or public policy.
11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Employer of any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be delivered by hand or, if
mailed, shall be sent via the United States Postal Service, certified mail,
return receipt requested or by overnight courier. All notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Company, to it at:
Freedom Bancshares, Inc.
000 Xxxx X. Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
(ii) If to the Bank, to it at:
Freedom Bank of Georgia
000 Xxxx X. Xxxxxx Xx.
Xxxxxxxxxx, XX 00000
(iii) If to the Executive, to him at:
Xxx X. Xxxxxx
X.X. Xxx 0000
Xxxxxxxxxxx, XX 00000
Any party hereto may change his or its address by advising the others, in
writing, of such change of address.
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement.
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14. WAIVER. A waiver by one party to this Agreement of any breach of this
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Agreement by the other party to this Agreement shall not be effective unless in
writing, and no waiver shall operate or be construed as a waiver of the same or
another breach on a subsequent occasion.
15. ARBITRATION. Any controversy or claim arising out of or relating to
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this contract, or the breach thereof, shall be settled by binding arbitration in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association. Judgment upon the award rendered by the arbitrator may be entered
only in a state court of Xxxxxxx County or the federal court for the Northern
District of Georgia. The Employer and the Executive agree to share equally the
fees and expenses associated with the arbitration proceedings.
EXECUTIVE MUST INITIAL HERE: /s/ TR .
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16. ATTORNEYS' FEES. In the event that the parties have complied with this
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Agreement with respect to arbitration of disputes and litigation ensues between
the parties concerning the enforcement of an arbitration award, the party
prevailing in such litigation shall be entitled to receive from the other party
all reasonable costs and expenses, including without limitation attorneys' fees,
incurred by the prevailing party in connection with such litigation, and the
other party shall pay such costs and expenses to the prevailing party promptly
upon demand by the prevailing party.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under
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and in accordance with the laws of the State of Georgia.
18. INTERPRETATION. Words importing any gender include all genders. Words
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importing the singular form shall include the plural and vice versa. The terms
"herein", "hereunder", "hereby", "hereto", "hereof" and any similar terms refer
to this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final
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agreement of the parties on the subject matter stated in this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
Employer or the Executive unless made in writing and signed by both parties.
All prior understandings and agreements relating to the subject matter of this
Agreement are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed 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.
21. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6,
--------
7, 8 and 9 shall survive the termination of the employment of the Executive
hereunder for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Company and the Bank to the
-------------------
Executive hereunder shall be joint and several.
12
IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
FREEDOM BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------
Signature
Xxxxxx X. Xxxxx
-------------------------------
Print Name
Attest: /s/ Xxxxxxx X. Xxxxx, Xx. Chairman
------------------------------- -------------------------------
R.S. (Xxxxx) Xxxxx Title
FREEDOM BANK OF GEORGIA
By: /s/ Xxxxxx X. Xxxxx
----------------------
Signature
Xxxxxx X. Xxxxx
-------------------------------
Print Name
Attest: /s/ Xxxxxxx X. Xxxxx, Xx. Chairman
------------------------------- -------------------------------
R.S. (Xxxxx) Xxxxx Title
/s/Xxx X. Xxxxxx
---------------------------------------
XXX X. XXXXXX
Date: 12-9-02
----------------------------------
13
EXHIBIT "A"
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POSITION DESCRIPTION
CHIEF EXECUTIVE OFFICER
Function:
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The Chief Executive Officer has responsibility for management of all
aspects of the Company and the Bank to ensure maximum profits within the
best interests of the shareholders, customers, employees and the community,
and consistent also with the safety and soundness of the Bank. In
conjunction with the Board of Directors of the Company and the Bank, the
Chief Executive Officer has responsibility for the formation and
maintenance of capital, capital expenditures, acquisition and/or
disposition of assets and the declaration of dividends.
The Chief Executive Officer is responsible for the planning, implementation
and control of long-term objectives subject to the approval of the Board of
Directors of the Company and/or the Bank. The Chief Executive Officer
develops and maintains organizational structure, hires competent personnel
and plans for management succession with the concurrence of the
Compensation Committee of the applicable Board of Directors. The Chief
Executive Officer coordinates major activities through subordinates,
approves budgets and evaluates Company and Bank-wide operations under the
guidance of the applicable Board of Directors.
The Chief Executive Officer provides leadership in establishing overall
objectives, policies and plans. The Chief Executive Officer develops the
pricing and investment policies in conjunction with various committees of
the applicable Board of Directors. The Chief Executive Officer reviews
financial and operating statements, and determines adequacy of reserves and
makes recommendations to the Board of Directors of the Company and/or the
Bank.
The Chief Executive Officer maintains relationships with customers, peers
within the banking community, employees, the Board of Directors of the
Company and/or the Bank and regulators. The Chief Executive Officer is
responsible for implementing the overall marketing plan for the bank under
the guidance of the Board. The Chief Executive Officer is responsible for
shareholder relationships and planning the annual shareholders' meeting.
The Chief Executive Officer acts as the principal representative of the
Company and the Bank with the press, other businesses, community and
industry associations and government agencies.
The Chief Executive Officer serves as a member of all committees of the
Board of Directors of the Company and/or the Bank, except the audit
committee.
A-1
Reports to:
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The Chief Executive Officer reports to the Board of Directors of the
Company and/or the Bank.
A-2
