EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 17th day of December, 2003, by and among
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FLINT RIVER BANCSHARES, INC., a bank holding company incorporated under the laws
of the State of Georgia (the "Company" or the "Employer") and XXXXXX X. XXXXX, a
resident of the State of Georgia (the "Executive").
RECITALS:
The Employer desires to employ the Executive as Chief Executive Officer of
the Company and the Executive desires to accept such employment.
At such time as the Flint River National Bank (Proposed) receives
preliminary approval of its regulatory charter from its primary federal
regulator, the Company intends to cause Flint River National Bank (Proposed) to
employ the Executive as its Chief Executive Officer on terms and conditions
substantially similar to those set forth herein.
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 incorporated
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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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Xxxxxxxx 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 Opening Date.
1.3 "Bank" shall mean Flint River National Bank (Proposed).
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1.4 "Business of the Employer" shall mean the business conducted by the
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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
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Employer 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) 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 the Employer if, after the
transaction, the acquiring person or persons owns controls or holds the
power to vote thirty percent (30%) or more of any class of voting
securities of the Employer;
(b) within any twelve-month period (beginning on or after the Opening
Date), the persons who were directors of the Employer 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
the Employer 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
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entitled to vote in the election of directors of the reorganized, merged,
combined 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 Employer to any third party.
1.7 "Charter Date" means the date on which the Bank receives
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preliminary approval of its regulatory charter from its primary federal
regulator.
1.8 "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.
1.9 "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.
1.10 "Effective Date" shall mean December 17, 2003.
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1.11 "Employer Information" means Confidential Information and Trade
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Secrets.
1.12 "Initial Term" shall mean that period of time commencing on the
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Effective Date and running until the earlier of the close of business on the
last business day immediately preceding the third anniversary of the Effective
Date or any earlier termination of employment of the Executive under this
Agreement as provided for in Section 3.
1.13 "Opening Date" shall mean the date the Bank opens for business.
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1.14 "Term" shall mean the Initial Term and all subsequent renewal
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periods.
1.15 "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
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(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 Chief Executive Officer of
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the Employer and, subject to the direction of the Board of Directors of the
Employer or the Board's designee(s), shall perform and discharge well and
faithfully the duties which may be assigned to him from time to time by the
Board of Directors in connection with the conduct of the Employer's business.
The duties and responsibilities of the Executive are set forth on Exhibit "A"
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attached hereto. On or immediately following the Charter Date, the Company shall
cause the Bank to employ the Executive as its Chief Executive Officer. The terms
and conditions of the Executive's employment with the Bank shall be reflected by
an amendment to this Agreement pursuant to which the Bank shall become a party
hereto.
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
management policies and decisions communicated to him by the Board of
Directors of the Employer; and
(c) timely prepare and forward to the Board of Directors of the
Employer 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
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(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 Employer 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 Term.
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Commencing with the first day of the Initial Term, the Term shall renew each day
such that the Term remains a three-year term from day-to-day thereafter unless
either party gives written notice to the other of its or his intent that the
automatic renewals shall cease. In the event such notice of non-renewal is
properly given, this Agreement and the Term shall expire on the third (3rd)
anniversary of the thirtieth (30th) day following the date such written notice
is received.
3.2 Termination. During the Term, the employment of the Executive
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under 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 Employer fails to raise the necessary capital required
to open the Bank, and should the Employer'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 at the Base Salary rate that would have become
effective as of the Opening Date 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 obligation to the Executive under Section 4.1 for
twelve (12) months following the effective date of termination;
(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 twelve
(12) 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 Employer, if any, whichever
occurs first, the Employer shall be required to continue to meet its
obligation to the Executive under Section 4.1; or
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(e) In the event that the primary regulator for the Employer
objects to the Executive's service as Chief Executive Officer of the
Employer, 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.
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 obligation to the Executive under Section 4.1 for
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.
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 of six (6) 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 Employer or in the ownership of a
substantial portion of the assets of the Employer (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.
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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
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employment 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), (d)
and (e), 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:
4.1 Base Salary. For the period beginning with the Effective Date of
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this Agreement and continuing until the Charter Date, the Executive shall be
compensated at an annual base rate of $100,000 (the "Base Salary"). The Base
Salary will be increased to $110,000 on the Charter Date and to $120,000 on the
Opening Date. The Executive's Base Salary shall be reviewed by the Board of
Directors of the Employer at least annually thereafter, and the Executive shall
be entitled to receive annually an increase in such amount, if any, as may be
determined by the Board of Directors based on its evaluation of the Executive's
performance. Base Salary shall be payable in accordance with the Employer's
normal payroll practices.
4.2 Incentive Compensation. Beginning on or after the Opening Date the
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Executive shall be eligible to participate in a bonus plan to be established by
the Board of Directors of the Employer and based on performance goals set by the
Board of Directors. 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 Effective Date,
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the Employer will establish a stock incentive plan and will grant to the
Executive an incentive stock option to purchase a number of shares equal to five
percent (5%) of the number of shares sold in the Employer's initial offering of
its stock. The option will be issued by the Employer pursuant to the Employer's
stock incentive plan and subject to the terms of a related stock option
agreement.
4.4 Automobile. Beginning as of the Effective Date, the Employer will
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provide the Executive with a monthly automobile allowance of $400.00 per month
until the Opening Date. Beginning as of the Opening Date, the Employer will
provide the Executive with an automobile of a make and model to be determined by
the Employer with a value not to exceed $25,000.00. The Employer will reimburse
the Executive for expenses associated with the operation, maintenance and repair
for the automobile. Not less frequently than once annually, the Executive will
make a good faith allocation between business and personal use of such vehicle
as required by the Internal Revenue Service guidelines.
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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
and dental insurance coverage covering the Executive as offered by the
Executive's prior employer until such time as the Executive is no longer
eligible for COBRA continuation health and dental insurance coverage or the
Employer, as applicable, adopts a health insurance plan for employees of the
Employer, whichever occurs first. At such time, the Employer will reimburse
Executive for the cost of premium payments by the Executive under the Employer's
health insurance plan for coverage for the Executive and his spouse.
Notwithstanding the foregoing, payments under this Section shall terminate 180
days after the Effective Date.
4.6 Life Insurance. The Employer will provide the Executive with term
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life insurance coverage providing a death benefit of $250,000.00 payable to such
beneficiary or beneficiaries as the Executive may designate.
4.7 Moving and Living Expenses.
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4.7.1 The Employer will reimburse the Executive for reasonable and
necessary expenses associated with moving his residence to Xxxxxxxx County, in
amount not to exceed to the lowest of three (3) bids secured by the Executive
and provided to the Employer.. 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.
4.7.2 The Executive shall occupy, and the Employer shall pay
rental expenses not to exceed $850.00 per month. Payments under this Section
shall terminate after six (6) months.
4.7.3. The Executive acknowledges that the Employer has made no
representations concerning the taxability or nontaxability of any of the
reimbursements contemplated by this Section.
4.8 Business Expenses; Memberships. The Employer specifically agrees to
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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 Employer;
(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
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(c) the dues and business related expenditures, including initiation
fees, associated with membership in a single local country club and a
single civic organization as selected by the Executive and approved by the
Board of Directors of the Employer;
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. The Executive acknowledges that the Employer has made
no representation concerning the taxability or nontaxability of any of the
reimbursements contemplated by this Section.
4.9 Vacation. On a non-cumulative basis, the Executive shall be
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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.
4.10 Sick Leave. The Executive shall be entitled to thirty (30) days
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of paid sick leave time in each successive twelve-month period during the Term,
during which Executive's compensation shall be paid in full.
4.11 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.
4.12 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.
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
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(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
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Employer, 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 Employer or 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
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 Employer or the Executive in connection with a Change of Control
pursuant to Section 3.3,
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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 Employer or 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.
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
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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 Employer, to it at:
Flint River Bancshares, Inc.
00-X Xxxxxxx Xxxxxx.
Xxxxxxx, XX 00000
(ii) If to the Executive, to him at:
Xxxxxx X. Xxxxx
94-B Oakland Ave
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Xxxxxxx, XX 00000
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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.
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 Xxxxxxxx County or the federal court for the Middle
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/ GEL.
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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
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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
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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,
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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.
IN WITNESS WHEREOF, the Employer and the Executive have executed and
delivered this Agreement as of the date first shown above.
FLINT RIVER BANCSHARES, INC.
By: /s/ Xxx X. Xxxxxxx Xx.
----------------------------
Signature
Xxx X. Xxxxxxx, Xx.
----------------------------
Print Name
Attest: /s/ W. Xxxxx Xxxxxxx Chairman of the Board
---------------------- ----------------------------
Title
/s/ Xxxxxx X. Xxxxx
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13
XXXXXX X. XXXXX
Date: December 17, 2003
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14
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 Employer to ensure maximum profits within the best interests
of the shareholders, customers, employees and the community. In conjunction
with the Board of Directors of the Employer, 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 Employer. 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 Board of Directors. The Chief Executive Officer coordinates major
activities through subordinates, approves budgets and evaluates
Employer-wide operations under the guidance of the 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 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 Employer.
The Chief Executive Officer maintains relationships with customers, peers
within the banking community, employees, the Board of Directors of the
Employer and regulators. The Chief Executive Officer is responsible for
implementing the overall marketing plan for the Bank under the guidance of
the Board of Directors of the Employer. 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
Employer 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 Employer, except the audit committee.
Reports to:
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The Chief Executive Officer reports to the Board of Directors of the Employer.
