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EXHIBIT 10.3
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of the 19th
day of August, 1998, by and among ALBANY BANK & TRUST, National Association
(Proposed) (the "Bank"), a proposed national bank; COMMUNITY CAPITAL BANCSHARES,
INC., a bank holding company incorporated under the laws of the State of Georgia
(the "Company") (collectively, the Bank and the Company are referred to
hereafter as the "Employer"), and XXXXXX X. XXX, a resident of the State of
Georgia (the "Employee").
RECITALS:
The Employer desires to employ the Employee as the President and Chief
Executive Officer of the Bank and of the Company and the Employee 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 "AFFILIATE" shall mean any business entity which controls the
Company, is controlled by or is under common control with the Company.
1.3 "AREA" shall mean the geographic area within the boundaries of
Xxxxxxxxx and Xxx Counties, Georgia. It is the express intent of the parties
that the Area as defined herein is the area where the Employee performs or
performed services on behalf of the Employer under this Agreement as of, or
within a reasonable time prior to, the termination of the Employee's employment
hereunder.
1.4 "BUSINESS OF THE EMPLOYER" shall mean the business conducted by the
Employer, which is commercial banking.
1.5 "CAUSE" shall mean:
1.5.1 With respect to termination by the Employer:
(a) A material breach of the terms of this Agreement by the
Employee, including, without limitation, failure by the Employee
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 Employee by the Employer.
Such notice shall (i) specifically identify the
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duties that the Board of Directors of either the Bank or the
Company believes Employee has failed to perform, (ii) state the
facts upon which such board of directors made such
determination, and (iii) be approved by a resolution passed by
two-thirds (2/3) of the directors of such board of directors
then in office;
(b) Conduct by the Employee that amounts to fraud, dishonesty
or willful misconduct in the performance of his duties and
responsibilities hereunder;
(c) The conviction of the Employee of a felony;
(d) Conduct by the Employee that amounts to gross and willful
insubordination or inattention to his duties and responsibilities
hereunder; or
(e) Conduct by the Employee that results in removal from his
position as an officer or employee of the Bank or of the Company
pursuant to a written order by any regulatory agency with
authority or jurisdiction over the Bank or Company, as applicable.
1.5.2 With respect to termination by the Employee, a material
diminution in the powers, responsibilities or duties of the Employee
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 Employee.
1.6 "CHANGE IN 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 either the
Bank or the Company, if, after the transaction, the acquiring
person (or persons) owns, controls or holds with power to vote
twenty-five percent (25%) or more of any class of voting
securities of either the Bank or the Company, as the case may be,
or such other transaction as may be described under 12 C.F.R.
Section 225.41(c)(1) or any successor thereto;
(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of either the Bank
or the Company 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
Effective Date shall be deemed to be an Incumbent Director if that
director was 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 (as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the Securities Exchange Act of 1934)
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relating to the election of directors shall be deemed to be an
Incumbent Director;
(c) the approval by the stockholders of either the Bank or
the Company of a reorganization, merger or consolidation, with
respect to which persons who were the stockholders of the Bank or
the Company, as the case may be, 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 Company and its subsidiaries to any third
party.
1.7 "COMPANY INFORMATION" means Confidential Information and Trade
Secrets.
1.8 "CONFIDENTIAL INFORMATION" means data and information relating to
the business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Employee or of which the Employee
became aware as a consequence of or through the Employee'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 Employee without authorization) or
that has been independently developed and disclosed by others, or that
otherwise enters the public domain through lawful means.
1.9 "EFFECTIVE DATE" shall mean the date on which the Employer advises
the Escrow Agent that the terms of the Escrow Agreement have been satisfied and
instructs the Escrow Agent to release the escrowed funds to the Employer.
1.10 "ESCROW AGENT" shall mean The Bankers Bank.
1.11 "ESCROW AGREEMENT" shall mean that certain agreement by and between
the Company and The Bankers Bank whereby The Bankers Bank holds in escrow the
funds received from the sale of the Company's common stock until certain terms
and conditions are satisfied.
1.12 "INITIAL TERM" shall mean that period of time commencing on August
1, 1998 (the "Beginning Date") and running until the earlier of the close of
business on the last business day immediately preceding the fifth anniversary
of the Beginning Date or any termination of employment of the Employee under
this Agreement as provided for in Section 3.
1.13 "PERMANENT DISABILITY" shall mean the total inability of the
Employee to perform his 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
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acceptable to the Employee.
1.14 "TERM" shall mean the Initial Term and all subsequent renewal
periods.
1.15 "TRADE SECRETS" means Employer information including, but not
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.
2.1 POSITION. The Employee is employed initially as the President and
Chief Executive Officer of the Bank and of the Company and, subject to the
direction of the Board of Directors of the Bank or of the Company, as
applicable, or their designee(s), shall perform and discharge well and
faithfully the duties which may be assigned to him from time to time by the
Bank or the Company in connection with the conduct of its business. The duties
and responsibilities of the Employee are set forth on Exhibit A attached
hereto.
2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
specifically assigned to the Employee pursuant to Section 2.1 hereof, the
Employee 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 management policies and decisions communicated to him
by the Board of Directors of either the Bank or the Company; and (c) timely
prepare and forward to the Board of Directors of either the Bank or the Company
all reports and accounting as may be requested of the Employee.
2.3 PERMITTED ACTIVITIES. The Employee shall devote his entire
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 Employee 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 Employee 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 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
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long as the Board of Directors of either the Bank or the Company approves of
such activities prior to the Employee'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 ninety (90) 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 Employee under
this Agreement may be terminated only as follows:
3.2.1 By the Employer or the Employee in the event that the
Company and the Bank abandon their organizational efforts or that
the Effective Date does not occur on or before December 31, 1999,
whichever occurs first, in which event the Employer shall have no
further obligation to the Employee.
3.2.2 By the Employer:
(a) For Cause, upon written notice to the Employee
pursuant to Section 1.5.1 hereof, which notice has been
approved by a resolution passed by two-thirds of the
directors then in office of either the Board of Directors of
the Bank or the Company, in which event the Employer shall
have no further obligation to the Employee except for the
payment of any amounts due and owing under Section 4 on the
effective date of termination;
(b) Without Cause at any time, provided that the
Employer shall give the Employee 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 Employee under Sections 4.1, 4.2 and 4.4
for a period equal to the greater of (i) twelve (12) months
following the termination or (ii) the remaining Term; or
(c) Upon the Permanent Disability of Employee at any
time, provided that the Employer shall give the Employee
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 Employee under
Sections 4.1, 4.2 and 4.4 for a period of twelve (12) months
following termination.
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3.2.3 By the Employee:
(a) For Cause, in which event the Employer shall be
required to continue to meet its obligations to the Employee
under Sections 4.1, 4.2 and 4.4 for a period equal to the
greater of (i) twelve (12) months following the termination
or (ii) the remaining Term; or
(b) Without Cause or upon the Permanent Disability or
death of the Employee, provided that the Employee 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 Employee except future payment
of any amounts due and owing under Section 4 on the effective
date of the termination.
3.2.4 By the Employee for any reason within six (6) months
following a Change in Control, provided that the Employee shall
give written notice to the Employer of his intention to terminate
this Agreement, in which event the Employer shall be required to
pay the Employee in cash a lump sum amount no later than ninety
(90) days following the effective date of termination an amount
equal to 2.99 multiplied by the sum of (a) the average of the
Employee's Base Salary paid over the immediately preceding three
calendar years or, if less, over the Employee's entire employment
history with the Employer and (b) the average of the annual
Incentive Compensation (as defined below) paid over the
immediately preceding three calendar years or, if less, over the
Employee's entire employment history with the Employer.
Notwithstanding any other provision of this Agreement to the
contrary, if the aggregate amount provided for in this Agreement
and the other payments and benefits which the Employee has the
right to receive from the Employer (the "Total Amount") would
constitute a "parachute payment," as defined in Section 280G(b)(2)
of the Internal Revenue Code, the Total Amount shall be reduced so
that it does not exceed an amount equal to (i) 2.99 multiplied by
(ii) the Employee's "base amount" for the "base period," as such
terms are defined under Section 280G of the Internal Revenue Code.
In the event the Total Amount is reduced by reason of this
Section, the Employee shall be entitled to determine which portion
of the Total Amount is to be reduced so that the Total Amount to
be paid to the Employee, as so reduced, satisfies the limitation
described in the immediately preceding sentence.
3.2.5 At any time upon mutual, written agreement of the
parties, in which event the Employer shall have no further
obligation to the Employee except for the payment of any amounts
due and owing under Section 4 on the effective date of
termination unless otherwise set forth in the written agreement.
3.2.6 Notwithstanding anything in this Agreement to the
contrary, the Term shall end automatically upon the Employee's
death, in which event the Employer shall have no further
obligation to the Employee except for the payment of any amounts
due and
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owing under Section 4 on the effective date of termination.
3.3 EFFECT OF TERMINATION. Termination of the employment of the
Employee pursuant to Section 3.2 shall be without prejudice to any right or
claim which may have previously accrued to either the Employer or the Employee
hereunder and shall not terminate, alter, supersede or otherwise affect the
terms and covenants and the rights and duties prescribed in this Agreement.
4. COMPENSATION. The Employee shall receive the following salary and
benefits:
4.1 BASE SALARY. During the Initial Term, the Employee shall be
compensated at a base rate of $110,000 annually (the "Base Salary"). The
Employee's Base Salary shall be reviewed by the Boards of Directors of the Bank
and the Company annually, and the Employee shall be entitled to receive
annually an increase in such amount, if any, as may be determined by such
boards of directors collectively. Base Salary shall be payable in accordance
with the Employer's normal payroll practices.
4.2 INCENTIVE COMPENSATION.
(a) The Employee shall be entitled to annual bonus compensation,
if any, in accordance with the terms specified in Exhibit B attached
hereto.
(b) The Employee shall also be entitled to a cash bonus of $15,000
payable immediately upon the opening of the Bank.
4.3 STOCK OPTIONS.
(a) As of the date of the prospectus for the Company's initial
public offering, the Employer will grant to the Employee an incentive
stock option to purchase, at a per share purchase price of $10.00, a
number of shares of the Company's common stock which is equal to 5% of the
number of shares of the Company's common stock which are sold in its
initial public offering. The option will become vested and exercisable in
20% increments, commencing on the first anniversary of the date of the
prospectus for the Company's initial public offering and continuing for
the next four successive anniversaries until the option is fully vested
and exercisable. The option shall expire generally upon the earlier of
ninety (90) days following termination of employment or upon the tenth
anniversary of the option grant date.
(b) In the event of a Change of Control, all options granted to
the Employee shall become one hundred percent (100%) vested and
exercisable.
4.4 HEALTH INSURANCE.
(a) The Employer shall reimburse the Employee for the cost of
premium payments paid
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by the Employee for the Employee's current health insurance covering the
Employee and the members of his immediate family (i) until such time as
the Company adopts a health insurance plan for employees of the Company
and the Bank, (ii) until the Company and the Bank abandon their
organizational efforts, or (iii) until December 31, 1999, whichever occurs
first.
(b) In the event of (i) termination by the Employee For Cause
(Section 3.2.3(a)), or (ii) termination by the Employee following a
Change of Control (Section 3.2.4), the Employer shall reimburse Employee
for the cost of premium payments paid by Employee to continue his then
existing health insurance as provided by the Employer for a period of six
(6) months following the date of termination of employment.
(c) In the event of termination by the Employer Without Cause
(Section 3.2.2(b)), the Employer shall reimburse the Employee for the
cost of premium payments paid by Employer to continue his then existing
health insurance as provided by the Employer for a period of twelve (12)
months following the date of termination of employment.
4.5 AUTOMOBILE. Beginning as of the Effective Date, the Employer will
provide Employee with an automobile to be used by the Employee for business and
personal purposes. The make and model of the automobile shall be determined by
the Employer. The Employer will pay expenses associated with the operation,
maintenance, repair and insurance for the automobile.
4.6 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees to
reimburse the Employee for (a) reasonable business (including travel) expenses
incurred by him in the performance of his duties hereunder, as approved from
time to time by the Board of Directors of either the Bank or the Company, and
(b) beginning as of the Effective Date, the dues and business related
expenditures, including initiation fees, associated with membership in a single
country club and a single civic association both as selected by the Employee
and in professional associations which are commensurate with his position;
provided, however, that the Employee shall, as a condition of 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.
4.7 VACATION. On a non-cumulative basis the Employee shall be entitled
to four (4) weeks of vacation in each successive twelve-month period during the
Term, during which his compensation shall be paid in full. Employee will
endeavor to take at least two consecutive weeks each year for vacation, with
other vacation to be taken at the time the Employer determines appropriate,
taking into account the requirements of the Employer.
4.8 LIFE INSURANCE. During the term of this Agreement, the Employer
will provide the Employee with term life insurance coverage providing a death
benefit of not less than $500,000, payable to such beneficiary or beneficiaries
as the Employee may designate.
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4.9 BENEFITS. In addition to the benefits specifically described
herein, the Employee shall be entitled to such benefits as may be available
from time to time for executives of the Employer similarly situated to the
Employee. 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 plans, retirement or investment funds,
dental, health, life and disability insurance benefits and such other benefits
as the Employer deems appropriate.
4.10 WITHHOLDING. The Employer may deduct from each payment of
compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income, FICA and other withholding
requirements.
5. COMPANY INFORMATION.
5.1 OWNERSHIP OF INFORMATION. All Company Information received or
developed by the Employee while employed by the Employer will remain the sole
and exclusive property of the Employer.
5.2 OBLIGATIONS OF THE EMPLOYEE. The Employee agrees (a) to hold
Company Information in strictest confidence, and (b) not to use, duplicate,
reproduce, distribute, disclose or otherwise disseminate Company Information or
any physical embodiments thereof and may in no event take any action causing or
fail to take any action necessary in order to prevent any Company Information
from losing its character or ceasing to qualify as Confidential Information or
a Trade Secret. In the event that the Employee is required by law to disclose
any Company Information, the Employee will not make such disclosure unless (and
then only to the extent that) the Employee 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 Company when the Employee becomes aware that
such disclosure has been requested and is required by law. This Section 5 shall
survive for a period of six (6) months 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 the
then-current Georgia Trade Secrets Act of 1990, O.C.G.A. xx.xx.
10-1-760-10-1-767, with respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the Employer,
and in any event upon termination of his employment with the Employer, the
Employee will promptly deliver to the Employer all property belonging to the
Employer, including, without limitation, all Company Information then in his
possession or control.
6. NON-COMPETITION. The Employee agrees that during his employment by the
Employer hereunder and, in the event of his termination by the Employer with
Cause pursuant to Section 3.2.2(a), by the Employee without Cause pursuant to
Section 3.2.3(b) or by the Employee in connection with a Change in Control
pursuant to Section 3.2.4, for a period of twelve (12) months thereafter, he
will not (except on behalf of or with the prior written consent of the
Employer),
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within the Area, either directly or indirectly, on his own behalf or in the
service or on behalf of others, as a principal, partner, officer, director,
manager, supervisor, administrator, consultant, executive employee or in any
other capacity which involves duties and responsibilities similar to those
undertaken for the Employer, or 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 Employee agrees that during his
employment by the Employer hereunder and, in the event of his termination by
the Employer with Cause pursuant to Section 3.2.2(a), by the Employee without
Cause pursuant to Section 3.2.3(b) or by the Employee in connection with a
Change in Control pursuant to Section 3.2.4, 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, directly or by assisting others, any business from any of the
Employer's customers, including actively sought prospective customers, with
whom the Employee 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 Employee agrees that during his
employment by the Employer hereunder and, in the event of his termination by
the Employer with Cause pursuant to Section 3.2.2(a), by the Employee without
Cause pursuant to Section 3.2.3(b) or by the Employee in connection with a
Change in Control pursuant to Section 3.2.4, 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, directly or by assisting others, any employee of the
Employer or its Affiliates, whether or not such employee is a full-time
employee or a temporary employee of the Employer or its Affiliates and whether
or not such employment is pursuant to written agreement and whether or not such
employment is for a determined period or is at will.
9. REMEDIES. The Employee agrees that the covenants contained in Sections 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
Employee 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 Employee
agree that all remedies available to the Employer or the Employee, as
applicable, shall be cumulative.
10. SEVERABILITY. The parties agree that each of the provisions included in
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
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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 EMPLOYEE. The existence of any claim, demand, action or
cause of action by the Employee against the Employer, or any Affiliate of 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 under
this Agreement shall be in writing and, if mailed by prepaid first-class mail
or certified mail, return receipt requested, shall be deemed to have been
received on the earlier of the date shown on the receipt or three (3) business
days after the postmarked date thereof. In addition, notices hereunder may be
delivered by hand, facsimile transmission or overnight courier, in which event
the notice shall be deemed effective when delivered or transmitted. All notices
and other communications under this Agreement shall be given to the parties
hereto at the following addresses:
(i) If to the Employer, to it at:
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
(ii) If to the Employee, to him at:
Xxxxxx X. Xxx
0000 Xxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement or
any of its rights and obligations hereunder without the written consent of the
other party hereto.
14. WAIVER. A waiver by the Employer of any breach of this Agreement by the
Employee 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 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 the State Court of Xxxxxxxxx County or the federal court for the Middle
District of Georgia. The Employer and the Employee agree to share equally the
fees and expenses associated with the arbitration proceedings.
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16. ATTORNEYS' FEES. In the event that the parties have complied with this
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 and in
accordance with the laws of the State of Georgia.
18. INTERPRETATION. Words importing any gender include all genders. Words
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 agreement of
the parties on the subject matter stated in the Agreement. No amendment or
modification of this Agreement shall be valid or binding upon the Employer or
the Employee 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 Employee pursuant to Sections 5, 6, 7, 8
and 9 shall survive the termination of the employment of the Employee hereunder
for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Bank and the Company to Employee
hereunder shall be joint and several.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Employer and the Employee have executed and
delivered this Agreement as of the date first shown above.
THE BANK:
ALBANY BANK & TRUST, NATIONAL ASSOCIATION
(PROPOSED)
By: /s/ Xxxxxx X. Xxx
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Print Name: Xxxxxx X. Xxx
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Title: President and Chief Executive Officer
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THE COMPANY:
COMMUNITY CAPITAL BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxxx X. Xxxxx
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Title: Chairman
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THE EMPLOYEE:
/s/ Xxxxxx X. Xxx
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XXXXXX X. XXX
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[EXHIBIT A
INITIAL DUTIES OF THE EMPLOYEE
THE INITIAL DUTIES OF THE EMPLOYEE SHALL INCLUDE, IN ADDITION TO ANY OTHER
DUTIES ASSIGNED THE EMPLOYEE BY THE BOARD OF DIRECTORS OF THE BANK OR THE
COMPANY OR THEIR RESPECTIVE DESIGNEES, THE FOLLOWING:
- XXXXXX A CORPORATE CULTURE THAT PROMOTES ETHICAL PRACTICES,
ENCOURAGES INDIVIDUAL INTEGRITY, FULFILLS SOCIAL
RESPONSIBILITY, AND IS CONDUCIVE TO ATTRACTING, RETAINING AND
MOTIVATING A DIVERSE GROUP OF TOP-QUALITY EMPLOYEES AT ALL
LEVELS.
- WORK WITH THE BOARD OF DIRECTORS TO DEVELOP A LONG-TERM
STRATEGY FOR THE COMPANY THAT CREATES SHAREHOLDER VALUE.
- DEVELOP AND RECOMMEND TO THE BOARD ANNUAL BUSINESS PLANS AND
BUDGETS THAT SUPPORT THE COMPANY'S LONG-TERM STRATEGY.
- MANAGE THE DAY-TO-DAY BUSINESS AFFAIRS OF THE COMPANY
APPROPRIATELY.
- USE BEST EFFORTS TO ACHIEVE THE COMPANY'S FINANCIAL AND
OPERATING GOALS AND OBJECTIVES.
- IMPROVE THE QUALITY AND VALUE OF THE PRODUCTS AND SERVICES
PROVIDED BY THE COMPANY.
- ENSURE THAT THE COMPANY MAINTAINS A SATISFACTORY COMPETITIVE
POSITION WITHIN ITS INDUSTRY.
- DEVELOP AN EFFECTIVE MANAGEMENT TEAM AND AN ACTIVE PLAN FOR
ITS DEVELOPMENT AND SUCCESSION, AND MAKE RECOMMENDATIONS TO
THE BOARD REGARDING HIRING, FIRING AND COMPENSATION.
- IMPLEMENT MAJOR CORPORATE POLICIES.]
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EXHIBIT B
Within ninety (90) days following the end of each calendar year of the
Employer's operations, the Employer shall pay the Employee a cash bonus equal
to the greater of (1) five percent (5%) of the Employer's consolidated pre-tax
earnings for that calendar year or (2) if the Employer meets or exceeds its
consolidated budgeted performance goals for the calendar year, $15,000 plus ten
percent (10%) of the positive difference between the Employer's consolidated
actual performance and budgeted performance with regard to pre-tax earnings (or
loss); provided, however, if the Employer does not meet its consolidated
budgeted performance goals for the calendar year, then this clause (2) shall be
deemed to be $0.00 (the "Incentive Compensation"). Notwithstanding the
foregoing, the Incentive Compensation payments contemplated by this Exhibit B
shall not become due and payable until the Board of Directors of the Bank has
determined, according to reasonable safety and soundness standards, that the
overall financial condition of the Bank, including asset quality, will not be
adversely affected by the payment of said amounts.