EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of February 21, 2002 (the "Effective Date"),
between FLAG Financial Corporation, a Georgia corporation ("FLAG"); FLAG Bank, a
bank subsidiary of FLAG (the "Bank") (collectively, the "Employer"); and XXXXX
X. XXXXX, a resident of the State of Georgia (the "Employee").
RECITALS:
The Employer employs the Employee as Senior Vice President of FLAG and the
Bank under the terms of that certain Employment Agreement dated January 1, 2001
(the "Employment Agreement").
The Employer and Employee desire to amend and restate the Employment
Agreement on the terms and conditions set forth herein.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. DEFINITIONS. Whenever used in this Agreement, the following terms and their
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variant forms shall have the meaning set forth below:
1.1 "Affiliate" shall mean any business entity which controls FLAG or
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is controlled by or is under common control with FLAG.
1.2 "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.
1.3 "Area" shall mean the geographic area within the boundaries of
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Dooly, Xxxxx and Xxxxx Counties, Georgia. It is the express intent of the
parties that the Area as defined herein is in the area where the Executive
performs services on behalf of the Employer under this Agreement as of the
Effective Date.
1.4 "Average Monthly Compensation" shall mean the quotient determined
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(a) by dividing the sum of the Employee's then current Base Salary (as defined
in Section 4.1 hereof) and the greater of the most recently paid Incentive
Compensation (as defined in Section 4.2(a) hereof) or the average of Incentive
Compensation paid over the three previous years (b) by twelve.
1.5 "Bank" shall mean FLAG Bank or its successor(s).
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1.6 "Business of the Employer" shall mean the business conducted by the
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Employer, which is the business of banking, including the solicitation of time
and demand deposits and the making of residential, consumer, commercial and
corporate loans.
1.7 "Cause" shall mean:
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1.7.1 With respect to termination by the Employer:
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(a) A material breach of the terms of this Agreement by the Employee,
including, without limitation, failure by the Employee to perform the
Employees' duties and responsibilities in the manner and to the extent
required under this Agreement, which breach remains uncured after the
expiration of thirty (30) days following the delivery of written notice of
such breach to the Employee by the Employer;
(b) Conduct by the Employee that (i) constitutes fraud, dishonesty,
gross malfeasance of duty or conduct grossly inappropriate to the
Employee's office and (ii) is demonstrably likely to lead to material
injury to the Employer or resulted or was intended to result in direct or
indirect gain to or personal enrichment of the Employee; provided, however,
that such conduct shall not constitute "Cause" unless there shall have been
delivered to the Employee a written notice setting forth with specificity
the reasons that the Employer believes the Employee's conduct meets the
standard set forth in this Section 1.7.1(b), the Employee shall have been
provided with an opportunity to be heard in person by the Board of
Directors of FLAG (with the assistance of counsel, if desired) and, in the
event of any such hearing, the decision of the Employer is confirmed by a
vote of the membership of the Board of Directors of FLAG as provided in
Section 3.2.1;
(c) Conduct resulting in the conviction of the Employee of a felony;
or
(d) Conduct by the Employee that results in the permanent removal of
the Employee from her position as an officer or employee of FLAG or the
Bank pursuant to a written order by any regulatory agency with authority or
jurisdiction over FLAG or the Bank, as the case may be.
1.7.2 With respect to termination by the Employee:
(a) a material diminution in the powers, responsibilities, duties or
total compensation of the Employee hereunder by the Employer, which
condition remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such condition to the Employer
by the Employee;
(b) the failure of the Board of Directors of FLAG to maintain the
Employee's appointment to the office of Senior Vice President, the failure
of the Board of Directors of the Bank to maintain the Employee's
appointment to the office of Senior Vice President; the failure of the
shareholders of FLAG to elect J. Xxxxxx Xxxxxxx, Xx. as a director of FLAG;
or the failure of the Board of Directors of the Bank to elect the Employee
as a director of the Bank; or
(c) a material breach of the terms of this Agreement by the Employer,
which breach remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the Employer by
the Employee.
1.8 "Change in Control" means any one of the following events
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occurring after the Effective Date:
(a) the acquisition by any person or persons acting in
concert of the then outstanding voting securities of FLAG, if, after the
transaction, the acquiring person (or persons) owns, controls or holds with
power to vote twenty-five percent (25%) or more of any class of voting
securities of FLAG or such other transaction as may be described under 12
C.F.R. Section 225.41(c) or any successor thereto;
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(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of FLAG immediately before
the beginning of such twelve-month period (the "Incumbent Directors") shall
cease to constitute at least a majority of such board of directors;
provided that any director who was not a director as of the Effective Date
shall be deemed to be an Incumbent Director if that director was elected to
such board of directors by, or on the recommendation of or with the
approval of, at least two-thirds (2/3) of the directors who then qualified
as Incumbent Directors; and provided further that no director whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of directors shall be deemed to be an
Incumbent Director;
(c) the approval by the stockholders of FLAG of a reorganization,
merger or consolidation, with respect to which persons who were the
stockholders of FLAG 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 FLAG and its subsidiaries to any third party.
1.9 "Confidential Information" means data and information relating to the
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Business of the Employer (which does not rise to the status of a Trade
Secret) which is or has been disclosed to the Employee or of which the
Employee became aware as a consequence of or through the Employee's
relationship to the Employer and which has value to the Employer and
is not generally known to its competitors. Without limiting the
foregoing, Confidential Information shall include:
(a) all items of information that could be classified as a trade
secret pursuant to Georgia law;
(b) the names, addresses and banking requirements of the customers of
the Bank and the nature and amount of business done with such customers;
(c) the names and addresses of employees and other business contacts
of the Bank;
(d) the particular names, methods and procedures utilized by FLAG and
the Bank in the conduct and advertising of their business;
(e) application, operating system, communication and other computer
software and derivatives thereof, including, without limitation, sources
and object codes, flow charts, coding sheets, routines, subrouting and
related documentation and manuals of FLAG and the Bank; and
(f) marketing techniques, purchasing information, pricing policies,
loan policies, quoting procedures, financial information, customer data and
other materials or information relating to the Bank's manner of doing
business.
Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public by the Employer (except where such public
disclosure has been made by the Employee without authorization) or that has been
independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
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1.10 "Employer Information" means Confidential Information and Trade
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Secrets.
1.11 "Permanent Disability" shall mean a condition for which benefits
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would be payable under any long-term disability coverage (without regard to the
application of any elimination period requirement) then provided to the Employee
by the Bank or, if no such coverage is then being provided, the inability of the
Employee to perform the material aspects of the Employee's duties under this
Agreement for a period of at least 180 consecutive days as certified by a
physician chosen by the Employee and reasonably acceptable to the Employer.
1.12. "Term" shall mean that period of time commencing on the Effective
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Date and running until (a) the close of business on the last business day
immediately preceding the third (3rd) anniversary of the thirtieth (30th) day
following the date non-renewal of this Agreement is received or (b) any earlier
termination of employment of the Employee under this Agreement as provided for
in Section 3.
1.13 "Trade Secrets" means, without regard to form, information
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including, but not limited to, technical or nontechnical data, formulas,
patterns, compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, product plans or lists of actual or
potential customers or suppliers which (a) derives economic value, actual or
potential, from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use; and (b) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy.
2. DUTIES.
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2.1 The Employee is employed as the Senior Vice President of FLAG and the
Bank, subject to the direction of the Chief Executive Officer and the Board of
Directors of FLAG and the Bank, respectively, or their designee(s). The Employee
shall perform and discharge well and faithfully the authority, duties and
responsibilities which may be assigned to the Employee from time to time by the
Chief Executive Officer of the Employer in connection with the conduct of the
Business of the Employer; provided, however, that, in making its assignments,
the Chief Executive Officer of the Employer shall assign only such authority,
duties and responsibilities assigned to the Employee from time to time as are,
in the aggregate, consistent with the duties and responsibilities as would be
customarily assigned to a person occupying a the positions held by the Employee
pursuant to the terms of this Agreement, including, but not limited to, those
set forth on Exhibit A attached hereto.
2.2 In addition to the duties and responsibilities specifically assigned to
the Employee pursuant to Section 2.1 hereof, the Employee shall:
(a) devote substantially all of the Employee's time, energy and skill
during regular business hours to the performance of the duties of the
Employee's employment (reasonable vacations and reasonable absences due to
illness excepted) and faithfully and industriously perform such duties;
(b) diligently follow and implement all management policies and
decisions communicated to the Employee by the Chief Executive Officer of
the Employer which are consistent with this Agreement; and
(c) timely prepare and forward to the Chief Executive Officer of the
Employer all reports and accounting as may be requested of the Employee.
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2.3 The Employee shall devote the Employee's entire business time,
attention and energies to the Business of the Employer and shall not during the
term of this Agreement be engaged (whether or not during normal business hours)
in any other business or professional activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; but this shall not be
construed as preventing the Employee from
(a) investing the Employee's personal assets in businesses which
(subject to clause (b) below) are not in competition with the Business of
the Employer and which will not require any services on the part of the
Employee in their operation or affairs and in which the Employee's
participation is solely that of an investor,
(b) purchasing securities or other interests in any entity provided
that such purchase shall not result in the Employee's collectively owning
beneficially at any time five percent (5%) or more of the equity securities
of any business in competition with the Business of the Employer; and
(c) participating in civic and professional affairs and organizations
and conferences, preparing or publishing papers or books or teaching so
long as the Board of Directors of FLAG approves of such activities prior to
the Employee'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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While this Agreement remains in effect, it shall automatically renew each day
after the Effective Date such that the Term remains a three-year term from
day-to-day thereafter unless any party gives written notice to the others of its
or her intent that the automatic renewals shall cease. In the event such notice
of non-renewal is properly given, the Agreement and the Term shall expire on the
third (3rd) anniversary of the thirtieth (30th) day following the date such
written notice is received.
3.2 Termination. During the Term, the employment of the Employee under
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this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) For Cause, following approval of such action by at least
seventy-five percent (75%) of the membership of the Board of Directors
of FLAG and only after providing Employee with at least thirty (30)
days' written notice, in which event the Employer shall have no
further obligation to the Employee except for the payment of any
amounts earned and unpaid as of the effective date of termination; or
(b) Without Cause at any time, provided that the Employer shall
give the Employee sixty (60) days' prior written notice of its intent
to terminate, in which event the Employer shall be required to meet
its obligations to the Employee under Section 3.3 below.
3.2.2 By the Employee:
(a) For Cause, with no prior notice except as provided in Section
1.7.2, in which event the Employer shall be required to meet its
obligations to the Employee under Section 3.3 below; or
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(b) Without Cause, provided that the Employee shall give the
Employer sixty (60) days' prior written notice of the Employee's
intent to terminate, in which event the Employer shall have no further
obligation to the Employee except for payment of any amounts earned
and unpaid as of the effective date of the termination.
3.2.3 By the Employee within the period commencing three (3) months
prior to and ending twelve (12) months after a Change in Control of the
Employer (the "Election Period"), provided that the Employee shall give
thirty (30) days' written notice prior to the end of the Election Period to
the Employer of the Employee's intention to terminate this Agreement, in
which event the Employer shall be required to meet its obligations to the
Employee under Section 3.3 below.
3.2.4 At any time upon mutual, written agreement of the parties, in
which event the Employer shall have no further obligation to the Employee
except for the payment of any amounts earned and unpaid as of the effective
date of the termination.
3.2.5 Notwithstanding anything in this Agreement to the contrary, the
Term shall expire automatically upon the Employee's death or Permanent
Disability, in which event the Employer shall have no further obligation to
the Employee except for the payment of any amounts earned and unpaid as of
the effective date of termination and, if the reason for termination is the
Employee's Permanent Disability, the Employer shall pay to the Employee as
liquidated damages an amount equal to Average Monthly Compensation for each
full month following such termination until the earlier of the month prior
to the month for which the Employee's long-term disability benefits become
payable or six (6) full months commencing with the month following the
month in which the date of termination occurs.
3.3 Termination Payments. In the event the Employee's employment is
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terminated under this Agreement prior to the expiration of the Term pursuant
Section 3.2.1(b), Section 3.2.2(a) or Section 3.2.3, the Employer shall pay to
the Employee as severance pay and liquidated damages a lump sum amount equal to
the product of (a) Average Monthly Compensation multiplied by (b) the number of
months (including partial months) from the effective date of the termination
through the then unexpired portion of the Term or, if greater, twelve. In
addition, from the effective date of the termination through the then unexpired
portion of the Term (or, if greater, for a period of twelve months following the
effective date of the termination (the "Severance Period"), the Employer shall
pay an amount equal to what would be the Employee's cost of COBRA health
continuation coverage for the Employee and eligible dependents for the greater
of the Severance Period or the period during which the Employee and those
eligible dependents are entitled to COBRA health continuation coverage from the
Employer.
Notwithstanding any other provision of this Agreement to the contrary, if
the aggregate of the payments provided for in this Agreement and the other
payments and benefits which the Employee has the right to receive from the
Employer (the "Total Payments") would constitute a "parachute payment," as
defined in Section 280G(b)(2) of the Internal Revenue Code, as amended (the
"Code"), the Employee shall receive the Total Payments unless the (a) after-tax
amount that would be retained by the Employee (after taking into account all
federal, state and local income taxes payable by the Employee and the amount of
any excise taxes payable by the Employee under Section 4999 of the Code that
would be payable by the Employee (the "Excise Taxes")) if the Employee were to
receive the Total Payments has a lesser aggregate value than (b) the after-tax
amount that would be retained by the Employee (after taking into account all
federal, state and local income taxes payable by the Employee) if the Employee
were to receive the Total Payments reduced to the largest amount as would result
in no portion of the Total Payments being subject to Excise Taxes (the "Reduced
Payments"), in which case the Employee shall be entitled only to the Reduced
Payments. If the
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Employee is to receive the Reduced Payments, the Employee shall be entitled to
determine which of the Total Payments, and the relative portions of each, are to
be reduced.
4. COMPENSATION. The Employee shall receive the following salary and benefits
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during the Term:
4.1 Base Salary. The Employee shall be compensated at a base rate of
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One Hundred Thirty-Five Thousand Dollars ($135,000) per year, which may be
increased from time to time in accordance with the immediately succeeding
sentence ("Base Salary"). The Employee's Base Salary shall be reviewed by the
Board of Directors of the Employer annually, and the Employee shall be entitled
to receive annually an increase in such amount, if any, as may be determined by
the Board of Directors of the Employer based upon the performance of the
Employer and its compliance with regulatory standards. Such salary shall be
payable in accordance with the Employer's normal payroll practices.
4.2 Incentive Compensation.
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(a) The Employee shall be entitled to participate in such bonus,
incentive and other executive compensation programs as are made
available to senior management of FLAG and the Bank from time to time
(the "Incentive Compensation").
(b) The Employee shall be entitled to receive a one-time bonus
payment equal to Fifty Thousand Dollars ($50,000) which shall be
payable to the Employee in a lump-sum cash payment as of the Effective
Date or as soon as practicable thereafter.
4.3 Stock Options. FLAG may grant to the Employee stock options from
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time to time commensurate with the Employee's position. Any such options shall
be reflected by a separate written award.
4.4 Benefits. The Employee shall be entitled to such benefits as may
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be available from time to time for senior executives of FLAG and the Bank
similarly situated to the Employee. All such benefits shall be awarded and
administered in accordance with FLAG and 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 and life insurance
benefits and such other benefits as the Employer deems appropriate.
4.5 Automobile. The Employer shall transfer to the Employee title to
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the automobile currently made available to the Employee for her use. The
Employee acknowledges that the value of the automobile at the time of the
transfer will constitute imputed income to the Employee.
4.6 Business Expenses. The Employer shall reimburse the Employee for
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reasonable business (including travel) expenses incurred by the Employee in
performance of the Employee's duties hereunder; provided, however, that the
Employee shall, as a condition of reimbursement, submit verification of the
nature and amount of such expenses in accordance with reimbursement policies
from time to time adopted by the Employer and in sufficient detail to comply
with rules and regulations promulgated by the Internal Revenue Service.
4.7 Vacation. On a non-cumulative basis the Employee shall be entitled
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to a minimum of four (4) weeks of vacation annually, during which the Employee's
compensation shall be paid in full.
4.8 Withholding. The Employer may deduct from each payment of
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compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income tax, FICA and other
withholding requirements.
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5. EMPLOYER INFORMATION.
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5.1 Ownership of Information. All Employer Information received or
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developed by the Employee while employed by the Employer will remain the sole
and exclusive property of the Employer.
5.2 Obligations of the Employee. The Employee agrees (a) to hold
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Employer Information in strictest confidence, and (b) not to use, duplicate,
reproduce, distribute, disclose or otherwise disseminate Employer Information or
any physical embodiments thereof and may in no event take any action causing or
fail to take any action necessary in order to prevent any Employer Information
from losing its character or ceasing to qualify as Confidential Information or a
Trade Secret. In the event that the Employee is required by law to disclose any
Employer Information, the Employee will not make such disclosure unless (and
then only to the extent that) the Employee has been advised by independent legal
counsel that such disclosure is required by law and then only after prior
written notice is given to the Employer when the Employee becomes aware that
such disclosure has been requested and is required by law. This Section 5 shall
survive for a period of twelve (12) months following termination of this
Agreement with respect to Confidential Information, and shall survive
termination of this Agreement for so long as is permitted by the then-current
Georgia Trade Secrets Act of 1990, O.C.G.A. Sec.Sec. 10-1-760-10-1-767, with
respect to Trade Secrets.
5.3 Delivery upon Request or Termination. Upon request by the
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Employer, and in any event upon termination of the Employee's employment with
the Employer, the Employee will promptly deliver to the Employer all property
belonging to FLAG or the Bank, including without limitation all Employer
Information then in the Employee's possession or control.
6. NON-COMPETITION. The Employee agrees that during his employment by the
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Employer hereunder and, in the event of his termination other than by the
Employer without Cause pursuant to Section 3.2.1(b), by the Employee for Cause
pursuant to Section 3.2.2(a), or by the Employee pursuant to Section 3.2.3, for
a period of twelve (12) months thereafter, the Employee 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, engage
in any business which is the same as or essentially the same as the Business of
the Employer.
7. NON-SOLICITATION OF CUSTOMERS. The Employee agrees that during the
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Employee's employment by the Employer hereunder and, in the event of Employee's
termination other than by the Employer without Cause pursuant to Section
3.2.1(b), by the Employee for Cause pursuant to Section 3.2.2(a), or by the
Employee pursuant to Section 3.2.3, for a period of twelve (12) months
thereafter, the Employee will not (except on behalf of or with the prior written
consent of the Employer), on the Employee's own behalf or in the service or on
behalf of others, solicit, divert or appropriate or attempt to solicit, divert
or appropriate, directly or by assisting others, any business from any of the
Bank's customers, including actively sought prospective customers, with whom the
Employee has or had material contact during the last two (2) years of the
Employee's employment, for purposes of providing products or services that are
competitive with those provided by the Bank.
8. NON-SOLICITATION OF EMPLOYEES. The Employee agrees that during the
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Employee's employment by the Employer hereunder and, in the event of the
Employee's termination other than by the Employer without Cause pursuant to
Section 3.2.1(b), by the Employee for Cause pursuant to Section 3.2.3(a), or by
the Employee pursuant to Section 3.2.3, for a period of twelve (12) months
thereafter, the Employee will not, on the Employee's own behalf or in the
service or on behalf of others, solicit, recruit or hire away or attempt to
solicit, recruit or hire away, directly or by assisting others, any
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employee of FLAG or its Affiliates, whether or not such employee is a full-time
employee or a temporary employee of FLAG or its Affiliates and whether or not
such employment is pursuant to written agreement and whether or not such
employment is for a determined period or is at will.
9. REMEDIES. The Employee agrees that the covenants contained in Sections 5
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through 8 hereof are of the essence of this Agreement; that each of the
covenants is reasonable and necessary to protect the business, interests and
properties of the Employer; and that irreparable loss and damage will be
suffered by the Employer should he breach any of the covenants. Therefore, the
Employee agrees and consents that, in addition to all the remedies provided by
law or in equity, the Employer shall be entitled to a temporary restraining
order and temporary and permanent injunctions to prevent a breach or
contemplated breach of any of the covenants. The Employer and the Employee
agree that all remedies available to the Employer or the Employee, as
applicable, shall be cumulative. In addition, in the event the Employee fails
to comply with any of the covenants contained in Section 5 hereof and such
failure shall not be cured to the reasonable satisfaction of the Employer within
thirty (30) days after receipt of written notice thereof from the Employer, the
Employer shall thereupon be relieved of liability for all obligations then
remaining under Section 3.3 hereof.
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 competent jurisdiction because of a conflict
between the provision and any applicable law or public policy, the provision
shall be redrawn to make the provision consistent with and valid and enforceable
under the law or public policy.
11. NO SET-OFF BY THE EMPLOYEE. The existence of any claim, demand, action or
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cause of action by the Employee against FLAG, or any Affiliate of FLAG, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Employer of any of its rights hereunder.
12. NOTICE. All notices and other communications required or permitted under
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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, facsimile transmission or overnight courier, in which event the notice
shall be deemed effective when delivered or transmitted. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(a) If to the Employer, to the Employer at:
FLAG Financial Corporation
Attention: Xxx Xxxxx
Suite 550
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000
(b) If to the Employee, to the Employee at:
Xxxxx X. Xxxxx
X.X. Xxx 000
Xxxxxxxx, XX 00000
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13. ASSIGNMENT. Neither party hereto may assign or delegate this Agreement or
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any of its rights and obligations hereunder without the written consent of the
other party hereto; provided, however, that this Agreement shall be assumed by
and shall be binding upon any successor to the Employer.
14. WAIVER. A waiver by the Employer of any breach of this Agreement by the
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Employee shall not be effective unless in writing, and no waiver shall operate
or be construed as a waiver of the same or another breach on a subsequent
occasion.
15. ARBITRATION. Except for any claim for injunctive relief, any controversy
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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. The Employer and the
Employee agree that they will seek to enforce any arbitration award in the
Superior Court of Xxxxxx County. The decision of the arbitration panel shall be
final and binding upon the parties and judgment upon the award rendered by the
arbitration panel may be entered by any court having jurisdiction. The Employer
and the Employee agree to share equally the fees and expenses associated with
the arbitration proceedings.
16. ATTORNEYS' FEES. With respect to arbitration of disputes and if litigation
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ensues between the parties concerning the enforcement of an arbitration award,
each party shall pay its own fees, costs and expenses; provided, however, the
Employer shall advance to the Employee reasonable fees, costs and expenses
incurred by the Employee in preparing for and in initiating or defending against
any proceeding or suit brought to enforce rights or obligations set forth in
this Agreement. Such advances shall be made within thirty (30) days after
receiving copies of invoices presented by the Employee for such fees, costs and
expenses. The Employee shall have the obligation to reimburse the Employer
within sixty (60) days following the final disposition of the matter (including
appeals) to the full extent of the aggregate advances unless the panel of
arbitrators or court, as the case may be, has ruled in favor of the Employee on
the merits of the substantive issues in dispute.
17. APPLICABLE LAW. This Agreement shall be construed and enforced under and
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in accordance with the laws of the State of Georgia. The parties agree that the
Superior Court of Xxxxxx County, Georgia, shall have jurisdiction of any case or
controversy arising under or in connection with this Agreement and shall be a
proper forum in which to adjudicate such case or controversy. The parties
consent to the jurisdiction of such courts.
18. INTERPRETATION. Words importing any gender includes 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
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of the parties on the subject matter stated in the Agreement. No amendment or
modification of this Agreement shall be valid or binding upon the Employer or
the Employee unless made in writing and signed by both parties. All prior
understandings and agreements relating to the subject matter of this Agreement
are hereby expressly terminated; provided, however, that this Agreement shall
not alter, limit or otherwise impair the Employee's rights under any
tax-qualified retirement plan in which the Employee is or may become a
participant.
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.
24
21. SURVIVAL. The obligations of the Employer pursuant to Sections 3.2.5 and
--------
3.3 and the obligations of the Employee pursuant to Sections 5, 6, 7, 8 and 9
shall survive the termination of the employment of the Employee hereunder for
the period designated under each of those respective sections.
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement in accordance with the provisions hereof.
FLAG FINANCIAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------
Print Name: Xxxxxx X. Xxxxx
-----------------
Date: 2/21/02
ATTEST:
------------------------------------
Date:
FLAG BANK
By: /s/ Xxxxxx X. Xxxxx
----------------------
Print Name: Xxxxxx X. Xxxxx
-----------------
Date: 2/21/02
ATTEST:
------------------------------------
Date:
-----------------------
/s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
EXHIBIT A
---------
DUTIES OF THE EMPLOYEE
- To be completed annually by the Employee and approved by the Chief
Executive Officer based on assigned duties at that time.
25
