EXHIBIT 10.8
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made as of this 20th
day of August, 1999, by and among FUTURUS BANK, National Association (Proposed)
(the "Bank"), a proposed national bank; FUTURUS FINANCIAL SERVICES, INC., a bank
holding company incorporated under the laws of the State of Georgia (the
"Company"), and Xxxxxxx X. Xxxxxx, a resident of the State of Georgia (the
"Executive").
RECITALS:
WHEREAS, the parties hereto desire to amend and restate the Employment
Agreement dated August 10, 1999, for the purpose of complying with regulatory
guidelines regarding the incentive stock option granted to the Executive by the
Company and to reconcile certain other provisions within the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Employer and Employee agree to amend the Agreement 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 Bank, is
controlled by or is under common control with the Bank.
1.3 "AREA" shall mean the geographic area within a radius of eighteen (18)
miles of the Bank's main office, to be located at _____ Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000. It is the express intent of the parties that the Area
as defined herein is the area where the Executive performs or performed services
on behalf of the Bank under this Agreement as of, or within a reasonable time
prior to, the termination of the Executive's employment hereunder.
1.4 "BEGINNING DATE" shall mean August 20, 1999.
1.5 "BUSINESS OF THE BANK" shall mean the business conducted by the Bank,
which is the business of commercial banking.
1.6 "CAUSE" shall mean:
1.6.1 With respect to termination by the Bank:
(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 Bank. Such
notice shall (i) specifically identify the duties that the Board of
Directors of the Bank believes the Executive has failed to perform,
(ii) state the facts upon which the Board of Directors made such
determination, and (iii) be approved by a resolution passed by
two-thirds (2/3) of the directors then in office;
(b) Conduct by the Executive that amounts to fraud, dishonesty
or willful misconduct in the performance of his duties and
responsibilities hereunder;
(c) Arrest for, charged in relation to (by criminal
information, indictment or otherwise), or conviction of the
Executive during the term of this Agreement of a crime involving
breach of trust or moral turpitude;
(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 Bank pursuant to a
written order by any regulatory agency with authority or
jurisdiction over the Bank.
(f) Receipt by the Bank of written notice from the Office of
the Comptroller of the Currency "OCC") that the OCC has criticized
the Executive's performance or his area of responsibility, AND has
either (i) rated the Bank a "4" or "5" under the Uniform Financial
Rating System or (ii) has determined that the Bank is in a
"troubled condition" as defined under Section 914 of the Financial
Institutions Reform, Recovery and Enforcement Act of 1989;
1.6.2 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 Bank, which remains
uncured after the expiration of thirty (30) days following the delivery of
written notice of such breach to the Bank by the Executive.
1.7 "CHANGE OF 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 fifty percent
(50%) or more of any class of voting securities of either the Bank
or the Company, as the case may be;
(b) within any twelve-month period (beginning on or after the
Beginning 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
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constitute at least a majority of such board of directors; provided
that any director who was not a director as of (the Beginning Date)
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 (as such terms are used in
Rule 14a-11 of Regulation 14A promulgated under the Securities
Exchange Act of 1934) relating to the election of directors shall
be deemed to be an Incumbent Director;
(c) 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.
1.8 "COMPANY INFORMATION" means Confidential Information and Trade
Secrets.
1.9 "CONFIDENTIAL INFORMATION" means data and information relating to
the business of the Bank or the Company (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 Bank and which has value to the Bank 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 Bank
(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.
1.10 "INITIAL TERM" shall mean that period of time commencing on the
Beginning Date and running until the earlier of the close of business on the
last business day immediately preceding the third anniversary of the Beginning
Date or any termination of employment of the Executive under this Agreement as
provided for in Section 3.
1.11 "PERMANENT DISABILITY" shall mean the total inability of the
Executive to perform his duties under this Agreement for the duration of the
short-term disability period under the Bank's policy then in effect as certified
by a physician chosen by the Bank and reasonably acceptable to the Executive.
1.12 "TERM" shall mean the Initial Term and all subsequent renewal
periods.
1.13 "TRADE SECRETS" means Bank or Company information including, but
not limited to, technical or nontechnical data, formulas, patterns,
compilations, programs, devices, methods,
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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 Executive is employed initially as the President and
Chief Executive Officer of the Bank and, subject to the direction of the Board
of Directors of the Bank or its designee(s), shall perform and discharge well
and faithfully the duties which may be assigned to him from time to time by the
Bank in connection with the conduct of its business. The duties and
responsibilities of the Executive are set forth on EXHIBIT A attached hereto.
2.2 FULL-TIME STATUS. In addition to the duties and responsibilities
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 Bank; and
(c) timely prepare and forward to the Board of Directors of
the Bank all reports and accounting as may be requested of the
Executive.
2.3 PERMITTED ACTIVITIES. The Executive shall devote his entire business
time, attention and energies to the Business of the Bank and shall not during
the Term be engaged (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 Bank 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 whose securities
are regularly traded provided that such purchase shall not result
in him collectively owning
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beneficially at any time five percent (5%) or more of the equity
securities of any business in competition with the Business of the
Bank; and
(c) participating in civic and professional affairs and
organizations and conferences, preparing or publishing papers or
books or teaching so long as the Board of Directors of the Bank
approves of such activities prior to the Executive'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 sixty (60) 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 Executive under
this Agreement may be terminated only as follows:
3.2.1 By the Bank in the event that the Bank fails to receive its
regulatory charter, or the Company fails to raise the necessary
capital required to open the Bank, neither of which are caused by
actions taken by the Executive, and should the Bank's Board of
Directors decide to forgo future efforts to open the Bank in which
event the Bank shall be required to continue to pay the Executive his
Base Salary as defined in Section 4.1 for twelve (12) months following
the termination.
3.2.2 By the Bank:
(a) FOR CAUSE, upon written notice to the Executive pursuant to
Section 1.6.1 hereof, where the notice has been approved by a
resolution passed by two-thirds of the directors of the Bank then
in office in which event the Bank 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;
(b) WITHOUT CAUSE at any time, provided that the Bank shall give
the Executive thirty (30) days' prior written notice of its intent
to terminate, in which event the Bank shall be required to
continue to pay the Executive his Base Salary as defined in
Section 4.1 for twelve (12) months following the termination; or
(c) UPON THE PERMANENT DISABILITY of Executive at any time,
provided that the Bank shall give the Executive thirty (30) days'
prior written notice of its intent to terminate, in which event
the Bank shall be required to pay the Executive his then existing
Base Salary as defined in Section 4.1 for twelve (12) months
following the
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termination or until the Executive begins receiving payments under
the Bank's long-term disability policy, whichever occurs first.
3.2.3 By the Executive:
(a) FOR CAUSE, in which event the Bank shall be required to pay
the Executive his then existing Base Salary as defined in Section
4.1 for twelve (12) months following the termination; or
(b) WITHOUT CAUSE OR UPON THE PERMANENT DISABILITY of the
Executive, provided that the Executive shall give the Bank sixty
(60) days' prior written notice of his intent to terminate, in
which event the Bank shall have no further obligation to the
Executive except future payment of any amounts due and owing on
the effective date of the termination. If the Executive terminates
this Agreement Without Cause on or before the first anniversary of
the Beginning Date, the Executive will be required to reimburse
the Bank the full amount of any initiation fees associated with
memberships in a country club paid by the Bank pursuant to Section
4.6. If the Executive terminates this Agreement Without Cause on
or before the second anniversary of the Beginning Date, the
Executive will be required to reimburse the Bank 50% of the amount
of any initiation fees associated with memberships in a country
club paid by the Bank pursuant to Section 4.6. If the Executive
terminates this Agreement Without Cause after the second
anniversary of the Beginning Date but on or before the end of the
Initial Term of the Agreement, the Executive will be required to
reimburse the Bank 25% of the amount of any initiation fees
associated with memberships in a country club paid by the Bank
pursuant to Section 4.6.
3.2.4 At any time upon mutual, written agreement of the parties, in
which event the Bank shall have no further obligation to the Executive
except for the payment of any amounts due and owing under this
Agreement on the effective date of termination unless otherwise set
forth in the written agreement.
3.2.5 Notwithstanding anything in this Agreement to the contrary, the
Term shall end automatically upon the Executive's death, in which
event the Bank shall have no further obligation to the Executive
except for the payment of any amounts due and owing under this
Agreement on the effective date of termination.
3.3 CHANGE OF CONTROL. If, during the Term of this Agreement and within
one (1) year immediately following a Change of Control or within six (6) months
immediately prior to a Change of Control, the Executive's employment with the
Bank under this Agreement is terminated by the Bank (or its successors) other
than for 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 severance payment equal to
one (1) times the Executives then current Base Salary during the immediately
preceding twelve (12) months, to be paid in full on the last day of the month
following the 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). Therefore, if the aggregate present value (determined
as of
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the date of the Change of Control in accordance with the provisions of Section
280G of the Internal Revenue Code (as amended) or any successor thereof and the
regulations and rulings thereunder ("Section 280G")) 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 Bank
or the Company or in the ownership of a substantial portion of the assets of the
Bank or the Company (the "Aggregate Severance") would result in a parachute
payment (as determined under Section 280G) then the Aggregate Severance shall
not be greater than an amount equal to 2.99 multiplied by Executive's base
amount (as determined under Section 280G) for the base period (as determined
under Section 280G). 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.
The Executive's average annual compensation shall be based on the most recent
five taxable years ending before the Change of Control (or the period during
which the Executive was employed by the Bank if the Executive has been employed
by the Bank for less than five years).
3.4 EFFECT OF TERMINATION. Termination of the employment of the Executive
pursuant to Section 3.2 or Section 3.3 shall be without prejudice to any right
or claim which may have previously accrued to either the Bank or the Executive
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 Executive shall receive the following salary and benefits
described in Exhibit B, attached hereto and made a part hereof:
4.1 BASE SALARY. During the Initial Term, the Executive shall be compensated
at a base rate of $120,000 annually (the "Base Salary"). The Executive's Base
Salary shall be reviewed by the Board of Directors of the Bank at least
annually, and the Executive shall be entitled to receive annually an increase in
such amount, if any, as may be determined by the Board of Directors. Base Salary
shall be payable in accordance with the Bank's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be entitled to annual bonus
compensation, if any, in accordance with the terms specified in EXHIBIT B
attached hereto.
4.3 STOCK OPTIONS.
(a) As of the date the Company's initial public offering is closed, the
Company will have established a stock option plan and will grant to the
Executive an incentive stock option to purchase, at a per share purchase
price equal to the Company's initial stock offering price, 25,000 shares of
the Company's common stock. The option will become vested and exercisable in
20% increments, commencing on the first anniversary of the option grant date
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.
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(b) Notwithstanding any other provision of this Agreement, if the Bank's
capital falls below the minimum requirements determined by the primary
federal or state regulator of the Company or the Bank (the "Regulator"), the
Regulator may direct the Company to require the Executive to exercise or
forfeit his incentive stock option granted under Section 4.3(a) herein. The
Company will notify the Executive within 45 days from the date the Regulator
notifies the Company or Bank in writing that the Executive must exercise or
forfeit his incentive stock options. The Company will cancel the incentive
stock options if not exercised within 21 days of the Company's notification
to the Executive. The Company agrees to comply with any Regulator's request
that the Company invoke its right to require the Executive to exercise or
forfeit his incentive stock options under the circumstances stated above."
(c) In addition to the incentive stock option granted under Section
4.3(a) herein, the Executive will be granted a warrant to purchase shares of
the Company's common stock on the same basis as the organizers of the Bank.
(d) The Executive will be eligible to receive additional stock options in
the discretion of the Board of Directors of the Bank and the Company.
(e) In the event a Change of Control occurs after the third anniversary
of the Executive's beginning employment date with the Company, all options
granted to the Executive shall become one hundred percent (100%) vested and
exercisable.
(f) In the event of the Executive's Permanent Disability or death, all of
the options granted to the Executive that would have vested during the
calendar year in which the Executive is determined to have a Permanent
Disability or dies, shall become one hundred percent (100%) vested and
exercisable as of the date the Executive is determined to have a Permanent
Disability or as of the Executive's death, as applicable.
(g) The options granted to the Executive shall be nontransferable other
than by will or the laws of descent and distribution and shall be exercisable
during the lifetime of the Executive only by the Executive (or in the event
of his Disability, by his personal representative) and after his death, only
by his legatee or the executor of his estate.
4.4 HEALTH INSURANCE.
(a) The Bank shall reimburse the Executive for the cost of premium
payments paid by the Executive for the Executive's current health insurance
covering the Executive 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; or
(ii) until the Company and the Bank abandon their organizational
efforts or for twelve (12) months after the Beginning Date, whichever is
later.
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(b) In the event of termination by the Executive FOR CAUSE (Section
3.2.3(a)) or following a CHANGE OF CONTROL (Section 3.3), the Bank shall
reimburse Executive for the cost of premium payments paid by the Executive to
continue his then existing health insurance as provided by the Bank for a
period of six (6) months following the date of termination of employment.
(c) In the event of termination by the Bank WITHOUT CAUSE (Section
3.2.2(b)), the Bank shall reimburse the Executive for the cost of premium
payments paid by the Executive to continue his then existing health insurance
as provided by the Bank or the Company for a period of twelve (12) months
following the date of termination of employment.
4.5 AUTOMOBILE. The Bank will provide the Executive with an automobile
allowance or an automobile with a monthly lease payment, based on a 36-month
lease, not to exceed $500 per month (inclusive of any taxes). The make and model
of the automobile shall be determined by the Bank. The Bank will pay expenses
associated with the operation, maintenance, repair and insurance for the
automobile.
4.6 BUSINESS EXPENSES; MEMBERSHIPS; XXXXXXX GRADUATE STUDIES; SECURITY
SYSTEM. The Bank specifically agrees to reimburse the Executive 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 the Bank;
(b) 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 Executive and in professional
associations which are commensurate with his position; provided, however,
that the Executive 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 Bank and in
sufficient detail to comply with rules and regulations promulgated by the
Internal Revenue Service;
(c) the dues and business related expenditures, including the remaining
initiation fees, associated with membership in the Marietta Country Club;
(d) the fees and reasonable expenses incurred by the Executive to
continue his graduate studies at the Xxxxxxx Graduate School of Banking, the
Executive having estimated that he has two years of studies remaining at an
estimated annual cost of $2,700, plus his travel and meal expenses; and
(d) the reasonable expenses to install and operate a security system in
the Executive's home, for an installation cost not to exceed $2,500 and a
monthly monitoring fee not to exceed $40, payable to the Executive when the
Bank opens for business.
4.7 BENEFITS. In addition to the benefits specifically described in this
Agreement, the Executive shall be entitled to such benefits as may be available
from time to time to executives of the Bank similarly situated to the Bank. All
such benefits shall be awarded and administered in
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accordance with the Bank'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 Bank deems appropriate.
4.8 WITHHOLDING. The Bank 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 COMPANY INFORMATION. All Company Information received or
developed by the Executive while employed by the Bank will remain the sole and
exclusive property of the Company or the Bank, as applicable.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
(a) to hold Company Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Company Information or any physical embodiments of
Company Information; and
(c) in no event may 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 Executive is required by law to disclose any Company
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 Company when the Executive becomes aware that such disclosure
has been requested and is required by law. The Bank will pay the legal counsel's
fees, provided that the Bank has approved the legal counsel to be used. This
Section 5 shall survive for a period of eighteen (18) 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. Sections 10-1-760-10-1-767, with respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the Bank, and in
any event upon termination of his employment with the Bank, the Executive will
promptly deliver to the Bank all property belonging to the Bank, including,
without limitation, all Company Information then in his possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the Bank
hereunder and, in the event of his termination:
- by the Bank For Cause pursuant to Section 3.2.2(a),
- by the Executive Without Cause pursuant to Section 3.2.3(b), or
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- in connection with a Change of Control pursuant to Section 3.3,
for a period of eighteen (18) months thereafter, he will not (except on behalf
of or with the prior written consent of the Bank), 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 Bank (including as an
organizer or proposed executive officer of a new financial institution), or
engage in any business which is the same as or essentially the same as the
Business of the Bank.
7. NON-SOLICITATION OF CUSTOMERS. The Executive agrees that during his
employment by the Bank hereunder and, in the event of his termination:
- by the Bank For Cause pursuant to Section 3.2.2(a),
- by the Executive Without Cause pursuant to Section 3.2.3(b), or
- in connection with a Change of Control pursuant to Section 3.3,
for a period of eighteen (18) months thereafter, he will not (except on behalf
of or with the prior written consent of the Bank), 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
Bank's customers, including actively sought prospective customers, 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 Bank.
8. NON-SOLICITATION OF EMPLOYEES. The Executive agrees that during his
employment by the Bank hereunder and, in the event of his termination:
- by the Bank For Cause pursuant to Section 3.2.2(a),
- by the Executive Without Cause pursuant to Section 3.2.3(b), or
- in connection with a Change of Control pursuant to Section 3.3,
for a period of eighteen (18) 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 Bank
or its Affiliates, whether or not:
- such employee is a full-time employee or a temporary employee of the
Bank or its Affiliates
- such employment is pursuant to written agreement, and
- such employment is for a determined period or is at will.
9. REMEDIES. The Executive 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 Bank, and that irreparable loss and damage will be suffered by
the Bank 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 Bank shall be entitled to a temporary restraining order and temporary and
permanent injunctions to
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prevent a breach or contemplated breach of any of the covenants. The Bank and
the Executive agree that all remedies available to the Bank or the Executive, 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 EXECUTIVE. The existence of any claim, demand, action or
cause of action by the Executive against the Bank, or any Affiliate of the Bank,
whether predicated upon this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Bank 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 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 Bank, to it at:
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(ii) If to the Executive, to him at:
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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 to this Agreement.
14. WAIVER. A waiver by one party to this Agreement of any breach of this
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 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
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be entered only in the State Court of Xxxxxx County or the federal court for the
Northern District of Georgia. The Bank and the Executive 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 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 this Agreement. No amendment or
modification of this Agreement shall be valid or binding upon the Bank or the
Executive unless made in writing and signed by both parties. All prior
understandings and agreements relating to the subject matter of this Agreement
are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or shall be
construed to confer upon or give to any person, firm or other entity, other than
the parties hereto and their permitted assigns, any rights or remedies under or
by reason of this Agreement.
21. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6, 7, 8
and 9 shall survive the termination of the employment of the Executive hereunder
for the period designated under each of those respective sections.
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IN WITNESS WHEREOF, the Bank and the Executive have executed and delivered
this Agreement as of the date first shown above.
THE BANK:
FUTURUS, NATIONAL ASSOCIATION
By:
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Print Name:
------------------------
Title:
----------------------------
THE COMPANY:
FUTURUS FINANCIAL SERVICES, INC.
By:
-------------------------------
Print Name:
------------------------
Title:
----------------------------
THE EXECUTIVE:
----------------------------------
XXXXXXX X. XXXXXX
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EXHIBIT A
INITIAL DUTIES OF THE EXECUTIVE
The initial duties of the Executive shall include, in addition to any other
duties assigned the Executive by the Board of Directors of the Bank or its
designee, 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 Bank that creates shareholder value.
- Develop and recommend to the Board annual business plans and
budgets that support the Bank's long-term strategy.
- Manage the day-to-day business affairs of the Bank
appropriately.
- Use best efforts to achieve the Bank's financial and operating
goals and objectives.
- Use best efforts to improve the quality and value of the
products and services provided by the Bank.
- Use best efforts to ensure that the Bank 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.
EXHIBIT B
ANNUAL BONUS COMPENSATION
1. BONUS. Beginning not later than one year after the opening of the Bank and in
addition to Executive's Base Salary, the Executive shall be eligible to receive
performance bonuses contingent upon the following:
(a) The overall condition of the Bank must be "satisfactory" in the
opinion of the OCC as set forth in the most current OCC Report of Supervisory
Activity provided to the Board of Directors of the Bank and the Uniform
Financial Institution Rating of the Bank shall not be less than "2"; and
(b) The Bank shall be "adequately capitalized" as defined under
regulations promulgated by the OCC pursuant to the Federal Deposit Insurance
Corporation Improvement Act of 1991.
2. BONUS SCHEDULE. Beginning one year after the opening of the Bank and assuming
the Bank has become and remains cumulatively profitable as of its most recent
fiscal year-end, in addition to the Executive's then existing Base Salary, the
Executive shall be eligible to receive the following annual performance bonuses:
(a) The Executive is eligible for an amount equal to 15% of his Base
Salary if Bank successfully reaches 100% of Bank's annual "plan" as
determined by the Bank's Board of Directors. ADDITIONALLY, the Executive is
eligible for an amount equal to 10% of his Base Salary if the Bank
successfully exceeds 110% of the Bank's "plan" as determined by the Bank's
Board of Directors.
(b) In addition to Section (2)(a) above, the Executive is eligible for
an amount equal to 15% of the Bank's pre-tax profits in an amount up to, but
not to exceed 25% of the Executive's annual base salary.
(c) The Executive is eligible for additional compensation at the
discretion of the Bank's Board of Directors.
(d) Notwithstanding the foregoing, the performance bonuses 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 the
performance bonuses.
