EXHIBIT 10.5
PROPOSED EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the _____ day of ___________, 2003, by and
among XXX COUNTY BANCSHARES, INC., a bank holding company organized under the
laws of the State of Georgia (the "Company"); FIRST NATIONAL BANK OF XXX COUNTY,
a proposed national bank being organized under the laws of the United States of
America (the "Bank") collectively, the Company and the Bank are referred to
hereinafter as the ("Employer"), and XXXXXXX X. GUY, a resident of the State of
Alabama (the "Executive").
RECITALS:
The Employer desires to employ the Executive as President and Chief
Executive Officer of the Company and the Bank and the Executive desires to
accept such employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and
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their variant forms shall have the meaning set forth below:
1.1 "AGREEMENT" shall mean this Agreement and any exhibits 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 Chambers, Lee, Macon,
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Xxxxxxx, and Tallapoosa Counties in Alabama and Muscogee County in Georgia. It
is the express intent of the parties that the Area as defined herein is the area
where the Executive performs services on behalf of the Employer under this
Agreement as of the Effective Date.
1.3 "BEGINNING DATE" shall mean the date set forth above on which this
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Agreement is executed by the parties.
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 either
the Company or the Bank believes the Executive 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 then in office;
(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 which
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occurs following the Effective Date:
(a) the acquisition by any person or persons acting in concert of
the then outstanding voting securities of either the Company or the
Bank if, after the transaction, the acquiring person or persons owns,
controls or holds the power to vote fifty percent (50%) or more of any
class of voting securities of the Company or the Bank;
(b) within any twelve-month period (beginning on or after the
Effective Date), the persons who were directors of either the Company
or the Bank immediately before the beginning of such twelve-month
period (the "Incumbent Directors") shall cease to constitute at least
a majority of such Board of Directors; provided that any director who
was not a director as of the beginning of such twelve-month period
shall be deemed to be an Incumbent Director if that director were
elected to such Board of Directors by, or on the recommendation of or
with the approval of, at least two-thirds of the directors who then
qualified as Incumbent Directors; and provided further that no
director whose initial assumption of office is in connection with an
actual or threatened election contest relating to the election of
directors shall be deemed to be an Incumbent Director;
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(c) a reorganization, merger or consolidation, with respect to
which persons who were the stockholders of either the Company or the
Bank 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 or the Bank to any third party.
1.7 "CONFIDENTIAL INFORMATION" means data and information relating to
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the business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Executive or of which the
Executive became aware as a consequence of or through the Executive's
relationship to the Employer and which has a value to the Employer and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure has been made by the Executive
without authorization) or that has been independently developed and disclosed by
others, or that otherwise enters the public domain through lawful means.
1.8 "DISABILITY" shall mean the inability of the Executive to perform
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each of his material duties under this Agreement for the longer of (a) three (3)
consecutive months or (b) the duration of the short-term disability period under
the Employee's policy then in effect, if any, as certified by a physician chosen
by the Employer and reasonably acceptable to the Executive.
1.9 "EFFECTIVE DATE" shall mean the date the Bank opens for business.
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1.10 "EMPLOYER INFORMATION" means Confidential Information and Trade
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Secrets.
1.11 "TERM" shall mean that period of time commencing on the Beginning
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Date and running until the earlier of (a) the close of business on the last
business day immediately preceding the third anniversary of the Beginning Date
or (b) any earlier termination of employment of the Executive under this
Agreement as provided for in Section 3.
1.12 "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 form its
disclosure or use; and
(b) is the subject of efforts that are reasonable under the
circumstances to maintain its secrecy.
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2. DUTIES.
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2.1 POSITION. The Executive is employed as President and Chief Executive
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Officer of the Company and the Bank and, subject to the direction of the Board
of Directors of the Company and the Bank or the applicable Board's designee(s),
shall perform and discharge well and faithfully the duties and responsibilities
of the Executive as set forth on Exhibit "A" attached hereto. The Executive
shall also perform such additional duties that may be assigned to him from time
to time by the Boards of Directors of the Company and the Bank only after such
Boards of Directors have solicited the reasonable opinion of the Executive with
respect to those additional duties. The Executive shall perform the duties
required under the Agreement at the principal offices of the Bank.
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 either the Company or the Bank; and
(c) timely prepare and forward to the Board of Directors of
either the Company or the Bank all reports and accountings as may be
requested of the Executive.
2.3 PERMITTED ACTIVITIES. The Executive shall devote his entire business
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time, attention and energies to the Business of the Employer and shall not
during the Term be engaged (whether or not during normal business hours) in any
other business or professional activity, whether or not such activity is pursued
for gain, profit or other pecuniary advantage, but this shall not be construed
as preventing the Executive from:
(a) investing his personal assets in businesses which (subject to
clause (b) below) are not in competition with the Business of the
Employer and which will not require any services on the part of the
Executive in their operation or affairs and in which his participation
is solely that of an investor;
(b) purchasing securities in any corporation, the securities of
which are regularly traded provided that such purchase shall not
result in him collectively owning beneficially at any time five
percent (5%) or more of the equity securities of any business in
competition with the Business of the Employer; and
(c) participating in civic and professional affairs and
organizations and conferences, preparing or publishing papers or books
or teaching so long as the
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Board of Directors of either the Company or the Bank approves in
writing of such activities prior to the Executive's engaging in them.
3. TERM AND TERMINATION.
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3.1 TERM. This Agreement shall remain in effect for the Term.
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3.2 TERMINATION. During the Term, the employment of the Executive under
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this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) In the event that the Bank fails to receive its regulatory
charter, or the Company fails to raise the necessary capital required
to open the Bank, and should the Company's or the Bank's Board of
Directors decide to forgo future efforts to open the Bank, in which
event the Employer shall be required to continue to meet its
obligation to the Executive under Section 4.1 for twelve (12) months
following the effective date of termination;
(b) For Cause, upon written notice to the Executive pursuant to
Section 1.5.1 hereof, in which event the Employer shall have no
further obligation to the Executive except for the payment of any
amounts due and owing under Section 4 on the effective date of
termination;
(c) Without Cause at any time, provided that the Employer shall
give the Executive thirty (30) days' prior written notice of its
intent to terminate, in which event the Employer shall be required to
continue to meet its obligations to the Executive under Section 4.1
for thirty-six (36) 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 six (6)
months following the date of termination or until the Executive begins
receiving payments under the Employer's long-term disability policy,
whichever occurs first, the Employer shall be required to continue to
meet its obligation to the Executive under Sections 4.1; or
(e) In the event the primary regulators for the Company and/or
the Bank fail to approve the Executive's service as President and
Chief Executive Officer of the Company and the Bank, 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 termination.
3.2.2 By the Executive:
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(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
thirty-six (36) 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 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 payments of any 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 or
beneficiaries except for payment of any amounts due and owing under Section
4 on the effective date of termination.
3.3 CHANGE OF CONTROL. If, within six (6) months following a Change in
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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 severance payment equal to two and one
half (2.5) times the Executive's then current Base Salary, to be paid in full on
the last day of the month following the effective date of termination. In no
event shall the payment(s) described in this Section 3.3 exceed the amount
permitted by Section 280G of the Internal Revenue Code, as amended (the "Code").
Therefore, if the aggregate present value (determined as of the date of the
Change of Control in accordance with the provisions of Section 280G of the Code)
of both the severance payment and all other payments to the Executive in the
nature of compensation which are contingent on a change in ownership or
effective control of the Company or the Bank or in the ownership of a
substantial portion of the assets of the Company or the Bank (the "Aggregate
Severance") would result in a "parachute payment," as defined under Section 280G
of the Code, then the Aggregate Severance shall not be greater than an amount
equal to 2.99 multiplied by Executive's "base amount" for the "base period, "as
those terms are defined under Section 280G of the Code. In the event the
Aggregate Severance is required to be reduced pursuant to this Section 3.3, the
Executive shall be entitled to determine which portions of the Aggregate
Severance are to be reduced so that the Aggregate Severance satisfies the limit
set forth in the preceding sentence. Notwithstanding any provision in this
Agreement, if the Executive may exercise his right to terminate employment under
this Section 3.3 or under Section 3.2.2(a), the Executive may choose which
provision shall be applicable.
3.4 EFFECT OF TERMINATION. Upon termination of the Executive's employment
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hereunder for any reason, the Employer shall have no further obligations to the
Executive or the Executive's estate with respect to this Agreement, except for
the payment of any amounts
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accrued or otherwise due and owing under Section 4 hereof and unpaid as of the
effective date of the termination of employment and payments set forth in
Sections 3.2.1(a), (c) and (d), Section 3.2.2(a), or Section 3.3, as applicable.
4. COMPENSATION. The Executive shall receive the following salary and benefits
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during the Term, except as otherwise provided below:
4.1 BASE SALARY. As of the Beginning Date, the Executive shall be
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compensated at an annual base rate of $100,000 (the "Base Salary"). The
obligation for payment of Base Salary shall be apportioned between the Company
and the Bank as they may agree from time to time in their sole discretion. The
Executive's Base Salary shall be reviewed by the Board of Directors of the
Company and the Bank at least annually following the Effective Date, 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 of the Company or the Bank
based on their respective evaluation of the Executive's performance. Base Salary
shall be payable in accordance with the Employer's normal payroll practices.
4.2 INCENTIVE COMPENSATION. The Executive shall be eligible to receive
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annual bonus compensation (the "Annual Bonus") in an amount determined at the
discretion of the Board of Directors of the Company or the Bank up to five
percent (5%) of the net profits of the Bank but not to exceed fifty percent
(50%) of his then current Base Salary. Notwithstanding the foregoing, the
Executive shall not be entitled to payment of the Annual Bonus for any calendar
year in which the Employer does not have a CAMELS rating of 1 or 2 for the year
to which the Annual Bonus relates.
4.3 STOCK OPTIONS. As soon as practicable after the Effective Date,
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the Company will establish a stock incentive plan and will grant to the
Executive an incentive stock option to purchase up to five percent (5%) of the
number of shares sold in Company's initial offering of its common stock for sale
at an exercise price of $10.00 per share. The option will be issued by the
Company pursuant to the Company's stock incentive plan and subject to the terms
of a related stock option agreement. The options will vest according to the
vesting schedule set forth in the applicable stock option agreement. Upon a
Change of Control, the option will become fully vested and exercisable, subject
to any restrictions as may be imposed by the Employer's primary regulator. The
option shall expire generally upon the earliest of (a) three (3) months
following the Executive's termination of employment other than due to death or
disability; (b) one (1) year following the Executive's termination of employment
due to death or disability; or (c) the tenth anniversary of the option grant
date.
4.4 AUTOMOBILE. Beginning as of the Effective Date, the Employer will
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provide the Executive with a monthly automobile allowance in an amount equal to
no more than $500 per month.
4.5 BUSINESS EXPENSES; MEMBERSHIPS. The Employer specifically agrees
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to reimburse the Executive for:
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(a) reasonable and necessary business (including travel) expenses
incurred by him in the performance of his duties as approved by the
Board of Directors of either the Company or the Bank;
(b) the reasonable dues and business related expenditures
associated with membership in a local country club as selected by the
Executive; and
(c) the reasonable dues and business related expenditures
associated with membership in civic, community, trade and professional
associations, as are mutually agreed upon by the Executive and the
Employer and are commensurate with the Executive's position;
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 representations concerning the taxability or nontaxability of any of the
reimbursements provided for in this Section.
4.6 VACATION. On a non-cumulative basis, the Executive shall be entitled
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to three (3) weeks of vacation in each successive twelve-month period during the
Term, during which his compensation shall be paid in full. Beginning on the
third anniversary of the Effective Date, the Executive will receive one
additional day of vacation for each year of employment completed after the third
anniversary of the Effective Date, provided; however, that the Executive's
annual vacation may not exceed six (6) weeks in any twelve-month period during
the Term.
4.7 BENEFITS. In addition to the benefits specifically described in this
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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 plans, retirement or investment funds,
family dental, family health, life and disability insurance benefits, sick leave
and such other benefits as the Employer deems appropriate.
4.8 WITHHOLDING. The Employer may deduct from each payment of compensation
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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 received
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or developed by the Executive while employed by the Employer will remain the
sole and exclusive property of the Employer.
5.2 OBLIGATIONS OF THE EXECUTIVE. The Executive agrees:
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(a) to hold Employer Information in strictest confidence;
(b) not to use, duplicate, reproduce, distribute, disclose or
otherwise disseminate Employer Information or any physical embodiments
of Employer Information; and
(c) in any event, not to take any action causing or fail to take
any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information
or a Trade Secret.
In the event that the Executive is required by law to disclose any Employer
Information, the Executive will not make such disclosure unless (and then only
to the extent that) the Executive has been advised by independent legal counsel
that such disclosure is required by law and then only after prior written notice
is given to the Employer when the Executive becomes aware that such disclosure
has been requested and is required by law. This Section 5 shall survive for a
period of twelve (12) 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 applicable law,
with respect to Trade Secrets.
5.3 DELIVERY UPON REQUEST OR TERMINATION. Upon request by the Employer,
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and in any event upon termination of his employment with the Employer, the
Executive will promptly deliver to the Employer all property belonging to the
Employer, including, without limitation, all Employer Information then in his
possession or control.
6. NON-COMPETITION. The Executive agrees that during his employment by the
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Employer hereunder and, in the event of his termination:
. by the Employer for Cause pursuant to Section 3.2.1(b),
. by the Executive without Cause pursuant to Section 3.2.2(b), or
. by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by the Employer without Cause pursuant to Section
3.2.1(c), for thirty-six (36) 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 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 CUSTOMER. 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 Executive without Cause pursuant to Section 3.2.2(b), or
. by the Executive in connection with a Change of Control pursuant to
Section 3.3,
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for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by Employer without Cause pursuant to Section 3.2.1(c),
for thirty-six (36) 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 Executive without Cause pursuant to Section 3.2.2(b), or
. by the Executive in connection with a Change of Control pursuant to
Section 3.3,
for a period of twenty-four (24) months thereafter, or in the event of the
Executive's termination by the Employer without Cause pursuant to Section
3.2.1(c), for thirty-six (36) months thereafter, he will not, within the Area,
on his own behalf or in the service of 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 a 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.
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11. NO SET-OFF BY THE EXECUTIVE. The existence of any claim, demand, action
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or cause of action by the Executive against the Employer whether predicated upon
this Agreement or otherwise, shall not constitute a defense to the enforcement
by the Employer of any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted
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under this Agreement shall be in writing and shall be delivered by hand or, if
mailed, shall be sent via the United States Postal Service, certified mail,
return receipt requested or by overnight courier. All notices hereunder may be
delivered by hand or overnight courier, in which event the notice shall be
deemed effective when delivered. All notices and other communications under
this Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Company, to it at:
P. O. Xxx 0000
Xxxxxx, XX 00000-0000
(ii) If to the Bank, to it at:
P. O. Xxx 0000
Xxxxxxx, XX 00000-0000
(iii) If to the Executive, to him at:
0000 Xxxx Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
Any party hereto may change his or its address by advising the others, in
writing, of such change of address.
13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement
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or any of its rights and obligations hereunder without the written consent of
the other party to this Agreement.
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 this
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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 Xxx County, Alabama, or federal court for the Middle
District of Alabama. The Employer and the Executive agree to share equally the
fees and expenses associated with the arbitration proceedings.
16. ATTORNEY'S 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
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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
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accordance with the laws of the State of Alabama.
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 agreement of
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the parties on the subject matter stated in this Agreement. No amendment or
modification of this Agreement shall be valid or binding upon the Employer or
the Executive unless made in writing and signed by both parties. All prior
understandings and agreements relating to the subject matter of this Agreement
are hereby expressly terminated.
20. RIGHTS OF THIRD PARTIES. Nothing herein expressed is intended to or shall
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be construed to confer upon or give to any person, firm or other entity, other
than the parties hereto and their permitted assigns, and rights or remedies
under or by reason of this Agreement.
21. SURVIVAL. The obligations of the Executive pursuant to Sections 5, 6, 7, 8
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and 9 shall survive the termination of the employment of the Executive hereunder
for the period designated under each of those respective sections.
22. JOINT AND SEVERAL. The obligations of the Company and the Bank to the
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Executive hereunder shall be joint and several.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Employer and the Executive have executed and delivered
this Agreement as of the date first shown above.
XXX COUNTY BANCSHARES, INC.
By: ________________________________
Signature
Print Name:__________________________
Title: ______________________________
FIRST NATIONAL BANK OF XXX COUNTY
By: ________________________________
Signature
Print Name:__________________________
Title: ______________________________
XXXXXXX X. GUY
_____________________________________
Date:________________________________
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EXHIBIT A
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INITIAL DUTIES OF THE EXECUTIVE
PRESIDENT AND CHIEF EXECUTIVE OFFICER
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Function:
Has overall responsibility for the leadership of the organization in all aspects
of its activities to insure safety and soundness, maximize return to the
shareholders, and meet the needs of its various constituencies (shareholders,
board of directors, customers, employees, regulators, and communities).
Principal Accountabilities:
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1. Develops and implements the overall business strategy of the Company
and the Bank, their culture and mission statements. Responsible for
the planning, implementation and control of long-term and short-term
goals, as well as strategic plans.
2. Provides leadership and direction in establishing, implementing,
monitoring, and achieving the annual business plan.
3. Oversees employee selection, training, professional development and
performance at all levels within the Company and the Bank. Ensures
each employee has clarity of job responsibilities and defined
standards and goals.
4. Oversees the selection of independent service providers, including but
not limited to attorneys, accountants, auditors and consultants.
5. Provides leadership in establishing overall policies and procedures
such as credit policy, investment policy, risk tolerance levels, and
operational procedures.
6. Works closely with the Chief Financial Officer to insure appropriate
financial reporting and that proper accounting procedures are
utilized.
7. Works closely with the Senior Lending Officer to monitor quality of
loan portfolio and that loans comply with the Bank's lending policy.
8. Provides active leadership in the development and implementation of an
effective CRA program including active involvement in ascertaining the
communities' credit needs.
9. Originates and approves loans, acting within the approved loan limits
and guidelines approved by the board of directors.
Exhibit A - 1 of 2
10. Participates actively in community and civic activities so as to
create a positive public perception of the Company and the Bank. Also,
is actively involved in business development activities to solicit and
maintain sufficient business to meet and/or exceed established goals.
11. Responsible for maintaining sound relationships with the various
regulatory agencies and managing the Company and the Bank to meet or
exceed all regulatory guidelines.
Exhibit A - 2 of 2