EXHIBIT 10.8
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is made effective as of May 12,
2010 (the "Effective Date"), by and between Atlantic Coast Bank (the "Bank") and
Xxxxxxx Xxxxxxxxxx (the "Executive"), and supersedes and replaces the prior
employment agreement dated January 1, 2010. References herein to the "Company"
mean Atlantic Coast Federal Corporation, which owns 100% of the common stock of
the Bank. The Company is a signatory to this Agreement for the sole purpose of
guaranteeing the Bank's performance hereunder. Any reference to the "Employer"
shall mean both the Company and the Bank.
WHEREAS, the Executive is currently employed as Chief Risk Officer of the
Employer; and
WHEREAS, Executive is willing to serve the Employer on the terms and
conditions hereinafter set forth; and
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
and upon the other terms and conditions hereinafter provided, the parties hereby
agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the term of this Agreement, Executive agrees to serve as Chief Risk
Officer of the Bank (the "Executive Position"), and will perform all duties and
will have all powers associated with such position as set forth in the job
description for such Executive Position as established by the Employer. During
the term of the Agreement, Executive also agrees to serve, if elected, as an
officer and/or director of any subsidiary or affiliate of Employer and in such
capacity carry out such duties and responsibilities reasonably appropriate to
that office.
2. TERM AND DUTIES.
(a) One Year Contract; Annual Renewal. The term of Executive's employment
under this Agreement shall commence as of the Effective Date and shall continue
thereafter for a period of one year. Commencing on the first anniversary date of
this Agreement (the "Anniversary Date") and continuing on each Anniversary Date
thereafter, the term of this Agreement shall renew for an additional year such
that the remaining term of this Agreement is always one year provided, however,
that in order for the Agreement to renew, the disinterested members of the Board
of Directors of the Bank (the "Board") must take the following actions prior to
each non-renewal notice period (as described in the next sentence): (i) at least
sixty (60) days prior to the Anniversary Date, conduct a comprehensive
performance evaluation and review of Executive for purposes of determining
whether to extend the Agreement; and (ii) affirmatively approve the renewal or
non-renewal of the Agreement, which decision shall be included in the minutes of
the Board's meeting. If the decision of such disinterested members of the Board
is not to renew the Agreement, then the Board shall provide the Executive with a
written notice of non-renewal ("Non-Renewal Notice") at least thirty (30) days
and not more than sixty (60) days prior to any Anniversary Date, such that this
Agreement shall terminate at the end of twelve (12) months following such
Anniversary Date.
(b) Termination of Agreement. Notwithstanding anything contained in this
Agreement to the contrary, either Executive or the Employer may terminate
Executive's employment with the Employer at any time during the term of this
Agreement, subject to the terms and conditions of this Agreement.
(c) Continued Employment Following Termination of Employment Period.
Nothing in this Agreement shall mandate or prohibit a continuation of
Executive's employment following the expiration of the term of this Agreement,
upon such terms and conditions as the Employer and Executive may mutually agree.
(d) Duties; Membership on Other Boards. During the Employment Period,
except for periods of absence occasioned by illness, reasonable vacation
periods, and reasonable leaves of absence approved by the Chief Executive
Officer, Executive shall devote substantially all his business time, attention,
skill, and efforts to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and management of
the Employer; provided, however, that, with the approval of the Chief Executive
Officer, Executive may serve, or continue to serve, on the boards of directors
of, and hold any other offices or positions in, business companies or business
organizations, which, in the Chief Executive Officer's judgment, will not
present any conflict of interest with the Employer, or materially affect the
performance of Executive's duties pursuant to this Agreement it being understood
that membership in and service on boards or committees of social, religious,
charitable or similar organizations does not require Chief Executive Officer
approval pursuant to this Section. For purposes of this Section, Chief Executive
Officer approval shall be deemed to have been granted as to service with any
such business company or organization that Executive was serving as of the date
of this Agreement and disclosed to the Chief Executive Officer.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) Base Salary. The Employer shall pay Executive a salary of not less than
$135,000 per year ("Base Salary"). Such Base Salary shall be payable biweekly,
or with such other frequency as officers and employees are generally paid.
During the period of this Agreement, Executive's Base Salary shall be reviewed
at least annually. Such review shall be conducted by the Chief Executive
Officer, and the Employer may increase, but not decrease, Executive's Base
Salary (with any increase in Base Salary to become "Base Salary" for purposes of
this Agreement).
(b) Bonus and Incentive Compensation. Executive shall be entitled to
incentive compensation and bonuses as provided in any plan or arrangement of the
Employer in which Executive is eligible to participate or as agreed to by the
Bank and the Executive. Nothing paid to Executive under any such plan or
arrangement will be deemed to be in lieu of other compensation to which
Executive is entitled under this Agreement. Subject to the terms of the relevant
plan documents, payments of bonuses and incentive compensation are dependent on
the Board's review of Executive's performance for the relevant period and shall
be paid at the Board's discretion.
(c) Employee Benefits. Executive shall be entitled to participate in all
employee benefit plans, programs and arrangements as generally provided by the
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Employer to senior executive officers and for which Executive shall qualify.
Executive is also entitled to receive reimbursement for a country club
membership of the Executive's choosing, not to exceed $5,000 (net after taxes)
annually.
(d) Paid Time Off. Executive shall be entitled to paid vacation time each
year during the term of this Agreement (measured on a fiscal or calendar year
basis, in accordance with the Employer's usual practices), as well as sick
leave, holidays and other paid absences in accordance with the Employer's
policies and procedures for senior executives. Any unused paid time off during
an annual period shall be treated in accordance with the Employer's personnel
policies as in effect from time to time.
(e) Expense Reimbursements. During the Employment Period, the Employer
shall pay or reimburse Executive for all reasonable travel, entertainment and
other reasonable expenses incurred by Executive during the course of performing
his obligations under this Agreement, upon presentation to the Employer of an
itemized account of such expenses in such form as the Employer may reasonably
require. All reimbursements under this Section 3(e) shall be paid as soon as
practicable by the Employer; provided, however, that no payment shall be made
later than March 15 of the year immediately following the year in which the
expense was incurred.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the term of this Agreement, the provisions of this Section 4 shall apply.
As used in this Agreement, an "Event of Termination" shall mean and include any
one or more of the following:
(i) the involuntary termination by the Bank of Executive's full-time
employment hereunder for any reason other than a termination due to "Disability"
or death, as set forth in Section 6; or a termination upon "Retirement," as
defined in Section 7 or a termination for "Cause," as defined in Section 8; and
(ii) Executive's voluntary resignation within two years after any of
the following, unless consented to by Executive (where any vote by Executive in
performance of his duties as a member of the Board in favor of such action shall
constitute express consent of Executive to such action):
(A) a relocation of Executive's principal place of employment to
a location that is more than 50 miles from Jacksonville, Florida;
(B) a material reduction in the benefits and perquisites,
including Base Salary, to Executive from those being provided as of the
Effective Date (except for any reduction that is part of a reduction in pay or
benefits that is generally applicable to officers or employees of the Bank) or;
(C) a material breach of this Agreement by the Employer;
provided, however, that a change in the Executive's title or duties will not be
considered a material breach of this Agreement.
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Upon the occurrence of any event described in clause (ii) above ("Good
Reason"), Executive shall have the right to elect to terminate his employment
under this Agreement by resignation within two years after the initial
occurrence of such condition upon not less than thirty (30) days prior written
notice given within a reasonable period of time (not to exceed ninety (90) days)
after the initial event giving rise to the right to elect; provided, however,
that the Bank shall be given at least thirty (30) days to remedy the condition
before the Executive terminates employment. Such voluntary termination for Good
Reason by Executive shall be an Event of Termination.
(b) Upon the occurrence of an Event of Termination, the Employer shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a lump sum in cash equal to one times (i) the highest annual
rate of Base Salary paid to Executive at any time under this Agreement and (ii)
the highest annual bonus and non-equity incentive compensation paid to the
Executive for the most recent calendar year prior to the Event of Termination;
provided however, that, to the extent required by regulations or interpretations
of the Office of Thrift Supervision, all severance payments under the Agreement
shall be reduced not to exceed three (3) times Executive's average annual
compensation (as defined in such regulations or interpretations) over the most
recent five (5) taxable years. Such payment shall not be reduced in the event
Executive obtains other employment following the Event of Termination.
Notwithstanding the foregoing, in the event Executive is a "Specified Employee"
(as defined in the Internal Revenue Code (the "Code") Section 409A and the
regulations thereunder) to the extent required under Code Section 409A, no
payment shall be made to Executive prior to the first day of the seventh month
following the Event of Termination.
(c) Upon the occurrence of an Event of Termination, the Bank shall provide
at the Bank's expense, life and disability insurance coverage and non-taxable
medical and dental insurance coverage substantially comparable to the coverage
maintained by the Bank for Executive and his family prior to the Event of
Termination, except to the extent such coverage may be changed in its
application to all Bank employees. Such coverage at the Bank's expense shall
cease upon the earlier of (i) twelve (12) months following the Event of
Termination or (ii) Executive's obtaining substantially similar coverage from a
new employer.
5. CHANGE IN CONTROL.
(a) In the event that the aggregate payments or benefits to be made or
afforded to Executive in the event of a change in control as defined in Code
Section 280G and that would be deemed to include an "excess parachute payment"
under Code Section 280G or any successor thereto, then at the election of
Executive, (i) such payments or benefits shall be payable or provided to
Executive over the minimum period necessary to reduce the present value of such
payments or benefits to an amount that is one dollar ($1.00) less than three
times Executive's "base amount" under such Code Section 280G, or (ii) the
payments or benefits to be provided under this Agreement shall be reduced to the
extent necessary to avoid treatment as an excess parachute payment, with the
allocation of the reduction among such payments and benefits to be determined by
Executive. Notwithstanding anything in this subsection to the contrary, a change
in control shall not be deemed to have occurred upon the conversion of the
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Company's mutual holding company parent to stock form, or in connection with any
reorganization used to effect such a conversion.
6. TERMINATION FOR DISABILITY OR DEATH.
(a) Termination of Executive's employment based on "Disability" shall be
construed to comply with Section 409A of the Internal Revenue Code and shall be
deemed to have occurred if: (i) Executive is unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death, or last for a continuous
period of not less than twelve (12) months; (ii) by reason of any medically
determinable physical or mental impairment that can be expected to result in
death, or last for a continuous period of not less than twelve (12) months,
Executive is receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering employees of the Bank or
the Company; or (iii) Executive is determined to be totally disabled by the
Social Security Administration. The provisions of Sections 6(b) and (c) shall
apply upon the termination of the Executive's employment based on Disability.
(b) Executive shall be entitled to receive Base Salary earned until the
date of Executive's termination of employment due to Disability, plus payment
for unused vacation, personal leave, sick leave and other vested benefits, as
well as payment under any short- or long-term disability plan maintained by the
Bank.
(c) The Bank shall cause to be continued life, disability, and non-taxable
medical and dental insurance coverage substantially comparable to the coverage
maintained by the Bank for the Executive prior to the termination of his
employment based on Disability, except to the extent such coverage may be
changed in its application to all Bank employees or not available on an
individual basis to an employee terminated based on Disability. This coverage
shall cease upon the earlier of (i) the date Executive returns to the full-time
employment of the Bank; (ii) Executive's full-time employment by another
employer; or (iii) Executive's death.
(d) In the event of Executive's death during the term of this Agreement,
his estate, legal representatives or named beneficiaries (as directed by
Executive in writing) shall be paid Executive's earned but unpaid Base Salary
through Executive's date of death, and the Employer shall pay all premiums for
six (6) months following Executive's date of death for medical, dental and other
insurance benefits normally provided for Executive's family. Such payments are
in addition to any other benefits that Executive's beneficiaries may be entitled
to receive under any employee benefit plan maintained by the Bank for the
benefit of Executive, including, but not limited to, the Bank's life insurance
and tax-qualified and non-qualified retirement plans.
7. TERMINATION UPON RETIREMENT.
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment at age sixty-five (65) or in accordance
with any retirement policy established by the Board with Executive's consent
with respect to him. Upon termination of Executive based on Retirement, no
amounts or benefits shall be due Executive under this Agreement, and Executive
shall be entitled to all benefits under any retirement plan of the Employer and
other plans to which Executive is a party.
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8. TERMINATION FOR CAUSE.
(a) The Employer may terminate the Executive's employment at any time, but
any termination other than Termination for Cause, as defined herein, shall not
prejudice the Executive's right to compensation or other benefits under the
Agreement. The Executive shall have no right to receive compensation or other
benefits for any period after Termination for "Cause." Termination for "Cause"
shall include termination because of the Executive's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, material breach of the Code of Ethics of either the Bank or the Company,
material violation of the Xxxxxxxx-Xxxxx requirements for officers of public
companies that in the reasonable opinion of the Chief Executive Officer or the
Board will likely cause substantial financial harm or substantial injury to the
reputation of the Company or the Bank, willfully engaging in actions that in the
reasonable opinion of the Chief Executive Officer or the Board will likely cause
substantial financial harm or substantial injury to the business reputation of
the Company or the Bank, failure to perform stated duties after receiving
written notice of Executive's failure to perform assigned duties, willful
violation of any law, rule or regulation (other than routine traffic violations
or similar offenses) or final cease-and-desist order, or material breach of any
provision of the Agreement.
(b) For purposes of this Section 8, no act or failure to act, on the part
of the Executive, shall be considered "willful" unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Employer. Any
act, or failure to act, based upon the direction of the Chief Executive Officer
or based upon the advice of counsel for the Employer shall be conclusively
presumed to be done, or omitted to be done, by the Executive in good faith and
in the best interests of the Employer.
(c) The basis for determining whether Cause exists shall not be deemed to
include any impact on the Company's or the Bank's business, properties, assets,
liabilities, results of operations, financial condition or business from (a)
changes in thrift, banking and similar laws of general applicability or
interpretations thereof by courts or governmental authorities, or other changes
affecting depository institutions generally, including changes in general
economic conditions and changes in prevailing interest and deposit rates, (b)
changes in GAAP or regulatory accounting requirements applicable to thrifts,
banks and their holding companies generally, or (c) changes in national or
international political or social conditions including the engagement by the
United States in hostilities, whether or not pursuant to the declaration of a
national emergency or war, or the occurrence of any military or terrorist attack
upon or within the United States, or any of its territories, possessions or
diplomatic or consular offices or upon any military installation, equipment or
personnel in the United States.
(d) Termination for Cause shall require the affirmative vote of a majority
of the members of the Bank's Board, acting in good faith with respect to such
termination, provided, however, that on or after the earliest date on which a
change in control as defined in Section 5 occurs, such a determination shall
require the affirmative vote of at least three fourths of the members of the
Board acting in good faith and such vote shall not be made prior to the
expiration of a 60-day period following the date on which the Board shall by
written notice to the Executive, furnish him a statement of its grounds for
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proposing to make such determination, during which period the Executive shall be
afforded a reasonable opportunity to make oral and written presentations to the
members of the Board, and to be represented by his legal counsel at such
presentations, or to refute the grounds for the proposed determination.
9. NOTICE.
(a) Any purported termination by the Bank for Cause shall be communicated
by Notice of Termination to Executive. If, within thirty (30) days after any
Notice of Termination for Cause is given, Executive notifies the Bank that a
dispute exists concerning the termination, the parties shall promptly proceed to
arbitration, as provided in Section 19. Notwithstanding the pendency of any such
dispute, the Employer shall discontinue paying Executive's compensation until
the dispute is finally resolved in accordance with this Agreement. If it is
determined that Executive is entitled to compensation and benefits under Section
4, the payment of such compensation and benefits by the Employer shall commence
immediately following the date of resolution by arbitration, with interest due
Executive on the cash amount that would have been paid pending arbitration (at
the prime rate as published in The Wall Street Journal from time to time).
(b) Any other purported termination by the Bank or by Executive shall be
communicated by a "Notice of Termination" (as defined in Section 9(c)) to the
other party. If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, the parties shall promptly
proceed to arbitration as provided in Section 19. Notwithstanding the pendency
of any such dispute, the Employer shall continue to pay Executive his Base
Salary, and other compensation and benefits in effect when the notice giving
rise to the dispute was given (except as to termination of Executive for Cause);
provided, however, that such payments and benefits shall not continue beyond the
date that is twelve (12) months from the date the Notice of Termination is
given. In the event the voluntary termination by Executive of his employment is
disputed by the Bank, and if it is determined in arbitration that Executive is
not entitled to termination benefits pursuant to this Agreement, he shall return
all cash payments made to him pending resolution by arbitration, with interest
thereon at the prime rate as published in The Wall Street Journal from time to
time, if it is determined in arbitration that Executive's voluntary termination
of employment was not taken in good faith and not in the reasonable belief that
grounds existed for his voluntary termination. If it is determined that
Executive is entitled to receive severance benefits under this Agreement, then
any continuation of Base Salary and other compensation and benefits made to
Executive under this Section 9 shall offset the amount of any severance benefits
that are due to Executive under this Agreement.
(c) For purposes of this Agreement, a "Notice of Termination" shall mean a
written notice that shall indicate the specific termination provision in this
Agreement relied upon and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
10. POST-TERMINATION OBLIGATIONS AND CONFIDENTIALITY.
(a) Executive hereby covenants and agrees that (except following a change
in control as defined in the Company's 2005 Stock Option Plan), for a period of
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one year following his termination of employment with the Bank, he shall not,
without the written consent of the Bank, either directly or indirectly:
(i) solicit, offer employment to, or take any other action intended
(or that a reasonable person acting in like circumstances would expect) to have
the effect of causing any officer or employee of the Bank or the Company, or any
of their respective subsidiaries or affiliates, to terminate his or her
employment and accept employment or become affiliated with, or provide services
for compensation in any capacity whatsoever to, any business whatsoever that
competes with the business of the Bank or the Company, or any of their direct or
indirect subsidiaries or affiliates or has headquarters or offices within 50
miles of the locations in which the Bank or the Company has business operations
or has filed an application for regulatory approval to establish an office;
(ii) become an officer, employee, consultant, director, independent
contractor, agent, sole proprietor, joint venturer, greater than five percent
(5%) equity owner or stockholder, partner or trustee of any savings bank,
savings and loan association, savings and loan holding company, credit union,
bank or bank holding company, insurance company or agency, any mortgage or loan
broker or any other entity competing with the Bank or its affiliates in the same
geographic locations where the Bank or its affiliates has material business
interests; or
(iii) solicit, provide any information, advice or recommendation or
take any other action intended (or that a reasonable person acting in like
circumstances would expect) to have the effect of causing any customer of the
Bank to terminate an existing business or commercial relationship with the Bank.
(b) Executive shall, upon reasonable notice, furnish such information and
assistance to the Bank as may reasonably be required by the Bank, in connection
with any litigation in which it or any of its subsidiaries or affiliates is, or
may become, a party; provided, however, that Executive shall not be required to
provide information or assistance with respect to any litigation between the
Executive and the Bank or any of its subsidiaries or affiliates.
(c) All payments and benefits to Executive under this Agreement shall be
subject to Executive's compliance with this Section 10. The parties hereto,
recognizing that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of this Section 10, agree that, in
the event of any such breach by Executive, the Bank will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive and all persons acting for or with
Executive. Executive represents and admits that Executive's experience and
capabilities are such that Executive can obtain employment in a business engaged
in other lines and/or of a different nature than the Bank, and that the
enforcement of a remedy by way of injunction will not prevent Executive from
earning a livelihood. Nothing herein will be construed as prohibiting the Bank
or the Company from pursuing any other remedies available to them for such
breach or threatened breach, including the recovery of damages from Executive.
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11. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive,
and if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties hereto
and supersedes any prior employment agreement between the Employer or any
predecessor of the Employer and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to Executive of
a kind elsewhere provided. No provision of this Agreement shall be interpreted
to mean that Executive is subject to receiving fewer benefits than those
available to him without reference to this Agreement.
13. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Employer and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an instrument
in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have been
waived, nor shall there be any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
15. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but any
termination by the Board other than termination for Cause shall not prejudice
Executive's right to compensation or other benefits under this Agreement.
Executive shall have no right to receive compensation or other benefits for any
period after termination for Cause.
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(b) If Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the Bank's affairs by a notice served under
Section 8(e)(3) [12 U.S.C. ss.1818(e)(3)] or 8(g)(1) [12 U.S.C. ss.1818(g)(1)]
of the Federal Deposit Insurance Act, the Bank's obligations under this contract
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion (i) pay Executive all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in part) any
of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) [12 U.S.C. ss.1818(e)(4)] or 8(g)(1) [12 U.S.C. ss.1818(g)(1)]
of the Federal Deposit Insurance Act, all obligations of the Bank under this
Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 U.S.C.
ss.1813(x)(1)] of the Federal Deposit Insurance Act, all obligations of the Bank
under this Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the contracting parties.
(e) All obligations under this Agreement shall be terminated, except to the
extent determined that continuation of the contract is necessary for the
continued operation of the Bank, (i) by the Director of the Office of Thrift
Supervision ("OTS") or his or her designee, at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) [12 U.S.C. ss.1823(c)] of the Federal Deposit
Insurance Act; or (ii) by the Director or his or her designee at the time the
Director or his or her designee approves a supervisory merger to resolve
problems related to operation of the Bank or when the Bank is determined by the
Director to be in an unsafe or unsound condition. Any rights of the parties that
have already vested, however, shall not be affected by such action.
(f) Notwithstanding anything herein contained to the contrary, any payments
to Executive by the Bank or the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the Federal Deposit Insurance Act, 12 U.S.C. ss. 1828(k), and the
regulations promulgated thereunder in 12 C.F.R. Part 359.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
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18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Georgia but
only to the extent not superseded by federal law.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, as an alternative
to civil litigation and without any trial by jury to resolve such claims,
conducted by a panel of three arbitrators sitting in a location selected by
Executive within fifty (50) miles from the main office of the Bank, in
accordance with the rules of the American Arbitration Association's National
Rules for the Resolution of Employment Disputes ("National Rules") then in
effect. One arbitrator shall be selected by Executive, one arbitrator shall be
selected by the Bank and the third arbitrator shall be selected by the
arbitrators selected by the parties. If the arbitrators are unable to agree
within fifteen (15) days upon a third arbitrator, the arbitrator shall be
appointed for them from a panel of arbitrators selected in accordance with the
National Rules. Judgment may be entered on the arbitrator's award in any court
having jurisdiction.
20. INDEMNIFICATION.
Executive shall be provided with coverage under a standard directors' and
officers' liability insurance policy, and shall be indemnified for the term of
this Agreement and for a period of six years thereafter to the fullest extent
permitted under applicable law against all expenses and liabilities reasonably
incurred by him in connection with or arising out of any action, suit or
proceeding in which he may be involved by reason of his having been a director
or officer of the Bank or any affiliate (whether or not he continues to be a
director or officer at the time of incurring such expenses or liabilities), such
expenses and liabilities to include, but not be limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements (such
settlements must be approved by the Board), provided, however, Executive shall
not be indemnified or reimbursed for legal expenses or liabilities incurred in
connection with an action, suit or proceeding arising from any illegal or
fraudulent act committed by Executive. Any such indemnification shall be made
consistent with Section 545.121 of the OTS Regulations and Section 18(k) of the
Federal Deposit Insurance Act, 12 U.S.C. ss.1828(k), and the regulations issued
thereunder in 12 C.F.R. Part 359.
21. NOTICE.
For the purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed to the respective addresses set
forth below:
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To the Company: Atlantic Coast Federal Corporation
Attn: Xxxxxx X. Xxxxxxx, Xx., President
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
To the Bank: Atlantic Coast Bank
Attn: Xxxxxx X. Xxxxxxx, Xx., President
000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
To Executive: Xxxxxxx Xxxxxxxxxx
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SIGNATURES
IN WITNESS WHEREOF, the Company and the Bank have each caused this
Agreement to be executed by its duly authorized representative, and Executive
has signed this Agreement, effective as of the date first above written.
ATLANTIC COAST FEDERAL CORPORATION
May 12, 2010 By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------- ------------------------------------
Date Xxxxxx X. Xxxxxxx, Xx., President
and Chief Executive Officer
ATLANTIC COAST BANK
May 12, 2010 By: /s/ Xxxxxx X. Xxxxxxx, Xx.
----------------------------- ------------------------------------
Date Xxxxxx X. Xxxxxxx, Xx. President
and Chief Executive Officer
EXECUTIVE
May 12, 2010 /s/ Xxxxxxx Xxxxxxxxxx
----------------------------- ----------------------------------------
Date Xxxxxxx Xxxxxxxxxx
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