EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 13th day of September, 2004, by and
among ALBANY BANK & TRUST, National Association (the "Bank"), a 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 currently employs the Employee as the President of the Bank
and of the Company pursuant to that certain employment agreement dated August
19, 1998 (the "Employment Agreement").
The Employer and the Employee desire to amend and restate the Employment
Agreement.
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 "AFFILIATE" shall mean any business entity which controls the
Company, is controlled by or is under common control with the Company.
1.2 "AGREEMENT" shall mean this Agreement and any exhibits
incorporated herein together with any amendments hereto made in the manner
described in this Agreement.
1.3 "AREA" shall mean the geographic area within the boundaries of
Xxxxxxxxx and Xxx Counties, Georgia and Houston and Xxx Counties, Alabama. It is
the express intent of the parties that the Area as defined herein is the area
where the Employee performs services on behalf of the Employer under this
Agreement.
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 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. The
Employee shall be provided with an opportunity to address the
Board of Directors of the Bank or the Company, as applicable,
prior to such board's approval of a resolution contemplated
under this Section;
(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) The receipt of any form of notice, written or
otherwise, that any regulatory agency having jurisdiction over
the Employer intends to institute any form of formal or informal
regulatory action against the Employee or the Employer, provided
that the Board of Directors of either the Company or the Bank
determines in good faith that such action involves acts or
omissions by or under the supervision of the Employee or that
termination of the Employee could materially assist the Employer
in avoiding or reducing the restrictions or adverse effects to
the Employer related to the regulatory action.
1.5.2 With respect to termination by the Employee,
(a) a material diminution in the powers,
responsibilities or duties of the Employee hereunder;
(b) a material reduction in the Employee's Base
Salary without the Employee's consent;
(c) relocation of the main office to which the
Employee reports on a regular basis to a location which is more
than twenty-five (25) miles from the Employer's main office
location as of the Effective Date;
(d) a requirement by the Employer that the Employer
travel unreasonably more than the amount of travel required of
the Employer as of the Effective Date in connection with the
performance of his duties for the Employer; or
(e) 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.
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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 (2/3) 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) 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 "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.
1.8 "EFFECTIVE DATE" shall mean April 26, 2004.
1.9 "EMPLOYER INFORMATION" means Confidential Information and Trade
Secrets.
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1.10 "INITIAL TERM" shall mean that period of time commencing on the
Effective Date and running until the earlier of the close of business on the
last business day immediately preceding the first anniversary of the Effective
Date or any termination of employment of the Employee under this Agreement as
provided for in Section 3.
1.11 "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 acceptable to the
Employee.
1.12 "TERM" shall mean the Initial Term and all subsequent renewal
periods.
1.13 "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 as the President of the Bank
and 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
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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 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 Term.
Commencing with the first day of the Initial Term, the Term shall renew each day
such that the Term remains a one-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 first
anniversary of the thirtieth (30th) day following the date such written notice
is received.
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:
(a) For Cause, upon written notice to the Employee
pursuant to Section 1.5.1 hereof, in which event the Employer
shall have no further obligation to the Employee except for the
payment of any amounts earned and unpaid 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 and 4.2 for a period equal to twelve
(12) months following the effective date of termination and
under Section 4.4 to the extent provided in that Section; 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 and 4.2 for a
period of twelve (12) months following the effective date of
termination, and under Section 4.4 to the extent provided in
that Section.
3.2.2 By the Employee:
(a) For Cause, 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 be required to
continue to meet its obligations to the Employee under Sections
4.1 and 4.2 for a period equal to twelve (12) months following
the
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effective date of termination and under Section 4.4 to the
extent provided in that Section;
(b) Without Cause, 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 payment of any amounts
earned and unpaid under Section 4 on the effective date of the
termination; or
(c) Upon the Permanent Disability of the Employee,
in which event the Employer shall be required to continue to
meet its obligation to the Employee under Sections 4.1 and 4.2
for six (6) months following the effective date of termination.
3.3 If, within twelve (12) months prior to or twenty-four (24)
months following a Change in Control, the Employee terminates his employment for
Cause or the Employer terminates the Employee's employment without Cause, the
Employer shall be required to pay the Employee in cash a lump sum payment in 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 (3) 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 (3) calendar years or, if less, over the
Employee's entire employment history with the Employer, which amount shall be
paid to the Employee no later than ninety (90) days following the effective date
of termination. Notwithstanding any other provision in this Agreement, if the
aggregate present value (determined as of the date of the Change in Control in
accordance with the provisions of Code Section 280G) of the payment payable
under this Agreement would be subject to the excise tax imposed by Code Section
4999 or any successor thereto, the Employer shall pay the Employee such
additional compensation as is necessary (a "Gross-Up Payment"), after taking
into account all federal, state and local income taxes payable by the Employee
as a result of the receipt of such additional compensation, to place the
Employee in the same after-tax position (including federal, state and local
taxes) he would have been in had no excise tax or any related interest or
penalties been payable by the Employee. The Board of Directors of the Employer
shall make a reasonable determination as to whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment.
3.4 TERMINATION BY AGREEMENT. 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 earned and
unpaid under Section 4 on the effective date of termination.
3.5 TERMINATION UPON DEATH. 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 earned and unpaid under Section 4
on the effective date of termination.
3.6 EFFECT OF TERMINATION. Termination of the employment of the
Employee pursuant to Section 3 shall be without prejudice to any right or claim
which may have previously accrued to
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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. Upon termination of the Employee's employment, the
Employer shall have no further obligation to the Employee or the Employee's
estate, except for payment of any amounts earned and unpaid under Section 4 on
the effective date of termination and any payments set forth in Sections
3.2.1(b) or (c), Section 3.2.2(a) or (c); Section 3.3 or Section 3.5, as
applicable.
4. COMPENSATION. The Employee shall receive the following salary and
benefits:
4.1 BASE SALARY. The Employee shall be compensated at a base rate of
$192,000 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. The Employee shall be entitled to annual
bonus compensation, if any, in accordance with the terms specified in EXHIBIT B
attached hereto.
4.3 STOCK OPTIONS. The Employee shall be eligible to receive stock
options as determined in the discretion of the Board of Directors of the
Company.
(a) As of the closing date of the Company's public offering
of its common stock described in the Form S-2 Registration Statement
filed with the Securities Exchange Commission on June 3, 2004 (the
"Offering"), the Employer will grant to the Employee an incentive stock
option to purchase, at a per share purchase price equal to the fair
market value of the Company's common stock on the grant date, a number
of shares of the Company's common stock which is equal to five percent
(5%) of the number of shares of the Company's common stock which are
sold in the Offering. The option will become vested and exercisable in
20% increments, commencing on the first anniversary of the closing date
of the 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 in Control or upon the death or
Permanent Disability of the Employee during the Term, the options
granted pursuant to this Agreement shall become one hundred percent
(100%) vested and exercisable.
4.4 HEALTH INSURANCE.
(a) The Employee shall be entitled to participate in the
health insurance plan provided by the Employer for its employees. The
Employer will pay the full cost of the premiums under such plan for
health insurance coverage for the Employee.
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(b) In the event of (i) termination by the Employee for
Cause (Section 3.2.2(a)), or (ii) termination by the Employee following
a Change in Control (Section 3.3), the Employer shall reimburse Employee
for the cost of premium payments paid by the 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 3.2.1(b)) or upon the Disability of the Employee (Section
3.2.1(c)), the Employer shall reimburse the Employee for the cost of
premium payments paid by the 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) the dues and business related expenditures, including initiation fees,
associated with membership in two country clubs and two civic associations 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. The
Employee will endeavor to take at least two (2) 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, 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.
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. The Employer makes no representation to the Employee
regarding the taxability or nontaxability of any benefits provided under Section
4.
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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. EMPLOYER INFORMATION.
5.1 OWNERSHIP OF INFORMATION. All Employer 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
Employer Information in strictest confidence, and (b) not to use, duplicate,
reproduce, distribute, disclose or otherwise disseminate Employer 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 Employer 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
Employer 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 Employer 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 for
Cause pursuant to Section 3.2.1(a), by the Employee without Cause pursuant to
Section 3.2.2(b) or by the Employee in connection with a Change in 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 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 for Cause pursuant to Section 3.2.1(a), by the Employee without Cause
pursuant to Section 3.2.2(b) or by the Employee in connection with a Change in
Control pursuant to Section 3.3, for a period of twelve (12) months
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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 for Cause pursuant to Section 3.2.1(a), by the Employee without Cause
pursuant to Section 3.2.2(b) or by the Employee in connection with a Change in
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, 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 a 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 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
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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.
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 Employer
shall pay all costs and expenses in connection with such litigation until such
time as a final determination (excluding any appeals) is made with respect to
the litigation. If the Employer prevails on the substantive merits of each
material claim in dispute in such litigation, the Employer shall be entitled to
receive from the Employee all reasonable costs and expenses, including without
limitation attorneys' fees, incurred by the Employer on behalf of the Employee
in connection with such litigation, and the Employee shall pay such costs and
expenses to the Employer promptly upon demand by the Employer.
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
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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 the
Employee hereunder shall be joint and several.
[Remainder of Page Intentionally Left Blank]
-12-
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
By: /s/ Xxxxxxx X. Xxxxx, III
---------------------------------
Print Name: Xxxxxxx X. Xxxxx, III
-----------------------------
Title: Chief Executive Officer
----------------------------------
THE COMPANY:
COMMUNITY CAPITAL BANCSHARES, INC.
By: /s/ Xxxxxxx X. Xxxxx, III
---------------------------------
Print Name: Xxxxxxx X. Xxxxx, III
-----------------------------
Title: Chief Executive Officer
----------------------------------
THE EMPLOYEE:
/s/ Xxxxxx X. Xxx
------------------------------------------
XXXXXX X. XXX
-13-
Exhibit A
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Duties of the Employee
The 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:
x 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.
o Work with the Board of Directors to develop a long-term strategy
for the Company that creates shareholder value.
o Develop and recommend to the Board annual business plans and
budgets that support the Company's long-term strategy.
o Manage the day-to-day business affairs of the Company
appropriately.
o Use best efforts to achieve the Company's financial and
operating goals and objectives.
o Improve the quality and value of the products and services
provided by the Company.
o Ensure that the Company maintains a satisfactory competitive
position within its industry.
o 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.
o Implement major corporate policies. [NOTE: REVISE DUTIES AS
NECESSARY]
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.
