TERMINATION AND WAIVER AGREEMENT
Exhibit
10.2
THIS
TERMINATION AND WAIVER AGREEMENT (this “Termination Agreement”) is made and
entered into as of this 8th day of September, 2009 (the “Effective Date”) by and
between HABERSHAM BANCORP (the “Company”), the parent company of HABERSHAM BANK
(the “Bank”) and XXXXXX XXXXXXX, a resident of the State of Georgia (the
“Executive”).
Preamble:
WHEREAS,
the Company and Executive are parties to that certain Habersham Bancorp
Supplemental Executive Retirement Plan Agreement originally effective as of
January 1, 2008 (the “Agreement”).
WHEREAS,
the original purpose of the Agreement was to provide the Executive with an
incentive to remain in the employ of the Company and/or the Bank by providing
the Executive with the opportunity to receive supplemental retirement payments
in connection with certain qualifying events.
WHEREAS,
the Company and the Bank are negatively affected by the current downturn in the
financial services sector of the United States economy.
WHEREAS,
the Bank is under regulatory scrutiny and is in the process of seeking
alternatives to increase capital and reduce expenses for the purpose of
enhancing its financial position and performance.
WHEREAS,
the obligations represented by the Agreement are impairing the Company’s and the
Bank’s ability to address their financial issues.
WHEREAS,
pursuant to Section 7.2 of the Agreement, the Company desires to unilaterally
terminate the Agreement to cease the accrual of any new benefit obligations
under the Agreement and, in connection with the Agreement’s termination, the
Company also desires to obtain the Executive’s agreement to waive completely the
Executive’s contractual rights to all of the benefit obligations accrued under
the Agreement prior to the effective date of the Agreement’s termination so as
to improve further the capital position of the Company and/or the Bank and to
enhance the prospects of the Company and the Bank in the face of their current
financial challenges.
WHEREAS,
the Executive understands and acknowledges that the prospective termination of
the Agreement does not require the Executive’s consent.
WHEREAS,
the Executive also understands and acknowledges that the Executive’s agreement
to waive completely the Executive’s contractual rights to all of the benefit
obligations accrued under the Agreement prior to the effective date of the
Agreement’s termination will enhance the Executive’s prospects for continuing
employment; will help preserve the value of any existing capital investment in
the Company that the Executive may have; and will mitigate the potential for
involving the Executive in litigation should the Bank be unsuccessful in
addressing its financial challenges.
NOW,
THEREFORE, in consideration of the recitals set forth above and the mutual
agreements set forth below, the parties hereto agree as
follows:
Statement of
Agreement:
1. Termination. The
Company hereby terminates the Agreement effective as of the Effective Date so
that no new or additional benefits shall accrue under the Agreement from and
after the Effective Date.
2. Waiver. The
Executive, on the Executive’s own behalf and on behalf of the Executive’s heirs
and beneficiaries, hereby irrevocably waives and renounces any and all of the
Executive’s rights, title, benefits, and interests in the Agreement to which the
Executive may be entitled by operation of law, private contract or otherwise and
unconditionally and without qualification refuses to accept any such rights,
title, benefits, and interests in the Agreement.
3. Acknowledgements. By
entering into this Termination Agreement, the Executive acknowledges and agrees
that:
(a) the
prospective termination of the Agreement does not require the consent of the
Executive;
(b) in
terminating the Agreement pursuant to Section 7.2 thereof, by virtue of the
waiver provided in Paragraph 2 above, the Company has no obligation to
distribute now, or at any time hereafter, to the Executive or any other party
any benefit obligations accrued under the Agreement from its inception through
and including the effective date of such termination (or at any time
thereafter); and
(c) the
Company shall have no obligations of any kind to the Executive or any other
party under the terms of the Agreement which survive its
termination.
4. Further
Acknowledgements. By entering into this Termination Agreement,
the Executive further acknowledges and agrees that:
(a) the
Executive has entered into this Termination Agreement of the Executive’s own
free will without fear or coercion;
(b) the
Executive has had an opportunity to review documents, consult with counsel and
make inquiries of Company representatives prior to entering into this
Termination Agreement and that the Executive understands the implications,
economic and otherwise, of the decision to waive the Executive’s rights to
existing benefits accrued under the Agreement; and
(c) the
consideration to be received by the Executive as a result of entering into this
Termination Agreement, as recited above in the Preamble to this Termination
Agreement, is good and valuable consideration sufficient in kind and amount to
support the waiver and release provided herein.
5. Release. The
Executive, on the Executive’s own behalf and on behalf of the Executive’s heirs
and beneficiaries, hereby unconditionally and forever releases, acquits, and
discharges the Company, and the past, present and future subsidiaries and
related companies, as well as the successors, assigns, officers, owners,
directors, agents, representatives, attorneys and employees of any of the
foregoing, from any and all liabilities, actions, causes of action, claims,
demands, damages, costs and expenses (including, without limitation, attorneys’
fees and costs actually incurred) which may have arisen or which may hereafter
arise from, on account of or in any way connected with the waiver provided
herein.
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6. No Guarantee of Continued
Employment. No portion of this Termination Agreement
shall be construed as an obligation on the part of the Company to continue the
employment of the Executive by the Company or any of its
affiliates.
7. Governing
Laws. This Termination Agreement shall be construed,
administered and enforced according to the laws of the State of Georgia, to the
extent not preempted by federal law.
8. Successors. This
Termination Agreement shall be binding upon and inure to the benefit of the
heirs, legal representatives, successors and permitted assigns of the
parties.
9. Entire
Agreement. This Termination Agreement expresses the entire
understanding and agreement of the parties with respect to the subject
matter.
10. Specific
Performance. In the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of this
Termination Agreement, the party or parties who are thereby aggrieved shall have
the right to specific performance and injunction in addition to any and all
other rights and remedies at law or in equity, and all such rights and remedies
shall be cumulative.
THE
EXECUTIVE ACKNOWLEDGES THAT THE EXECUTIVE HAS BEEN ADVISED TO DISCUSS ALL
ASPECTS OF THIS TERMINATION AGREEMENT WITH AN ATTORNEY OR ADVISOR OF THE
EXECUTIVE’S CHOICE. THE EXECUTIVE HAS CAREFULLY READ AND FULLY
UNDERSTANDS ALL THE PROVISIONS OF THIS TERMINATION AGREEMENT AND HAS KNOWINGLY
AND VOLUNTARILY ENTERED INTO THIS TERMINATION AGREEMENT.
IN
WITNESS WHEREOF, the parties have caused this Termination Agreement to be
executed as of the date first indicated above.
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By:
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/s/ Xxxxx X. Xxxxxxx
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Title:
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President and Chief Executive
Officer
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EXECUTIVE:
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/s/ Xxxxxx Xxxxxxx
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Xxxxxx
Xxxxxxx
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