AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of January, 2001 (the "Effective
Date"), between FLAG Financial Corporation, a Georgia corporation ("FLAG"); FLAG
Bank, a bank subsidiary of FLAG (the "Bank") (collectively, the "Employer"); and
J. Xxxxxx Xxxxxxx, Xx., a resident of the State of Georgia (the "Employee").
RECITALS:
The Employer employs the Employee, respectively, as the Chief Executive
Officer of FLAG and as President and Chief Executive Officer of the Bank under
the terms of that certain Employment Agreement dated April 1, 1998 (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 "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 "Affiliate" shall mean any business entity which controls FLAG or
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is controlled by or is under common control with FLAG.
1.3 "Area" shall mean the geographic area within the boundaries of
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Crisp, Troup, Dooly, Macon and Telfair Counties, Georgia. It is the express
intent of the parties that the Area as defined herein is in the area where the
Business of the Employer is conducted 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
below) and most recently paid Incentive Compensation (as defined below) (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:
(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 evidenced by a
resolution adopted by two-thirds of the members of the Board of
Directors of FLAG after the hearing;
(c) Conduct resulting in the conviction of the Employee of a
felony; or
(d) Conduct by the Employee that results in the permanent removal
from the Employee's 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 its Chief Executive Officer;
the failure of the Board of Directors of the Bank to maintain the
Employee's appointment to the offices of its President and Chief
Executive Officer; or the failure of the shareholders of FLAG to elect
Employee as a director of FLAG;
(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; or
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(d) a material diminution in the powers, responsibilities or
duties of the Executive Committee of the Board of Directors of FLAG,
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.
1.8 "Employer Information" means Confidential Information and Trade
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Secrets.
1.9 "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 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.
1.10 "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 of the
directors who then qualified as Incumbent Directors; and provided
further that no director whose initial assumption of office is in
connection with an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934) relating to the election of directors
shall be deemed to be an Incumbent Director;
(c) 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.
1.11 "Initial Term" shall mean that period of time commencing on the
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Effective Date and running until the day immediately preceding the third
anniversary of the Effective Date.
1.12 "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.
1.13. "Term" shall mean the term of this Agreement and shall consist of
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the Initial Term; provided, however, that the Initial Term shall automatically
renew each day after the Effective Date so that the Term remains a three-year
term until either party provides written notice to the other of the intent that
the automatic renewals shall cease, in which case, the Term shall expire on the
third anniversary of the date of the written notice so provided.
1.14 "Trade Secrets" means information including, but not limited to,
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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.
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2. DUTIES.
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2.1 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 Board of Directors of the Employer in connection with
the conduct of the Business of the Employer; provided, however, that, in making
its assignments, the Board of Directors 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 Board of Directors of the Employer which are consistent with
this Agreement; and (c) timely prepare and forward to the Board of Directors of
the Employer all reports and accounting as may be requested of the Employee.
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. Notwithstanding anything to the
contrary in the preceding provisions of this Section 2.3, the Employee may
continue to serve on any board of directors that the Employee serves upon as of
the Effective Date.
3. TERM AND TERMINATION.
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3.1 Term. This Agreement shall remain in effect for the Term or
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until a termination of this Agreement prior to the expiration of the Term in
accordance with the remaining provisions of this Section.
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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 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 payable 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
(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 payable
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 payable 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 payable 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 full months commencing with the month following the month in
which the date of termination occurs.
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3.3 Termination Payments. In the event 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
continue to provide the Employee the benefits described in Section 4.6 and
Section 4.8 and 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 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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Two Hundred Fifty Thousand Dollars ($250,000) per year, as the same may be
increased from time to time in accordance with the immediately succeeding
sentence ("Base Salary"). The Employee's 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 Bank and
its compliance with regulatory standards. Such salary shall be payable in
accordance with the Employer's normal payroll practices.
4.2 Incentive Compensation. The Employee shall be entitled to
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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").
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4.3 Stock Options. FLAG shall grant to the Employee stock options
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commensurate with the Employee's position taking into account options held by
the Employee as of the Effective Date. 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 Disability Insurance. The Employer shall provide the Employee with
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amounts, as additional compensation, as and when necessary, to allow the
Employee to pay the premiums that become due under the personal disability
insurance policy currently owned by the Employee.
4.6 Automobile. The Employer shall provide the Employee with an
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automobile of a type consistent with its policy in effect as of the Effective
Date, with such automobile to be used by the Employee for business and personal
purposes. The automobile shall be replaced with a new, comparable automobile no
less frequently than every twenty-four (24) months. The Employer will pay
expenses associated with the operation and maintenance of the automobile,
including taxes, insurance and repairs. To the extent the Employee contributes
to the cost of an automobile's loan or lease payments in excess of the amount
required by the Employer's obligation under this Agreement, the Employee shall
be granted a share of any equity in such an automobile pursuant to a methodology
mutually agreed to between the parties.
4.7 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.
4.8 Memberships. The Employer shall reimburse the Employee for the
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annual dues associated with membership in two country or eating clubs selected
by the Employee; provided, however, that the aggregate annual dues for such
memberships shall not exceed five percent (5%) of the Employee's Base Salary
then in effect, and for memberships in such professional associations which are
commensurate with the Employee's position; 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.
4.9 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.
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4.10 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, FICA and other withholding
requirements.
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), within the Area, 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.
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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, within the Area, 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
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:
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(a) If to the Employer, to it at:
FLAG Financial Corporation
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Chairman
(b) If to the Employee, to the Employee at:
______________________________
______________________________
______________________________
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. 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. The Employer and the Employee agree that they will seek to enforce
any arbitration award in the Superior Court of Xxxxx 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.
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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 Xxxxx 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
--------------
importing the singular form shall include the plural, and vice versa. The terms
"herein," "hereunder," "hereby, "hereto, "hereof" and any similar terms refer to
this Agreement. Any captions, titles or headings preceding the text of any
article, section or subsection herein are solely for convenience of reference
and shall not constitute part of this Agreement or affect its meaning,
construction or effect.
19. ENTIRE AGREEMENT. This Agreement embodies the entire and final agreement
-----------------
of the parties on the subject matter stated in 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 the Citizens
Bank Executive Indexed Retirement Program, under that certain Insurance
Agreement between the Employee and Citizens Bank, dated November 2, 1992 or
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.
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.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement in accordance with the provisions hereof.
FLAG FINANCIAL CORPORATION
/s/ XXXX X. XXXXXX, III
----------------------------------------
Print Name: Xxxx X. Xxxxxx, III
----------------------------
Date: February 17, 2001
-----------------------------------
ATTEST:
/s/ XXXXX XXXXX, ASST. SECRETARY
------------------------------------------
Date: February 17, 2001
------------------------------------------
FLAG BANK
/s/ XXXX X. XXXXX
----------------------------------------
Print Name: Xxxx X. Xxxxx, Chairman
----------------------------
Date: February 20, 2001
-----------------------------------
ATTEST:
/s/ XXXXX XXXXX, ASST. SECRETARY
------------------------------------------
Date: February 20, 2001
------------------------------------------
/s/ J. XXXXXX XXXXXXX, XX.
----------------------------------------
J. Xxxxxx Xxxxxxx, Xx.
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EXHIBIT A
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DUTIES OF THE EMPLOYEE
- Xxxxxx a corporate culture that promotes ethical practices, encourages
individual integrity, fulfills social responsibility, and is conducive to
attracting, retaining and motivating a diverse group of top-quality
employees at all levels.
- Work with the Board of Directors of the Employer to develop a long-term
strategy for the Employer that creates shareholder value.
- Develop and recommend to the Board of Directors of the Employer annual
business plans and budgets that support the Employer's long-term strategy.
- Manage the day-to-day business affairs of the Employer appropriately.
- Use best efforts to achieve the Employer's financial and operating goals
and objectives.
- Improve the quality and value of the products and services provided by each
Employer.
- Ensure that the Employer maintains a satisfactory competitive position
within its industry.
- Develop an effective management team and an active plan for its development
and succession. Have responsibility for hiring, firing and transferring
members of Employer management team and other employees. Have
responsibility for making recommendations for the promotion and
compensation of members of Employer management team and other employees.
- Implement, administer, interpret, and ensure compliance with major
corporate policies adopted by the Board of Directors.
- Execute contracts on behalf of the Employer and delegate to other employees
the right to execute contracts on behalf of the Employer.
- Perform such duties as are required by laws and regulations.
- Report to the Executive Committee of the Board of Directors.
- Ensure that the Employer achieves maximum profits while taking into account
the best interests of the Employer's customers, shareholders and employees.
- Serve on all committees of the Board of Directors, other than the Audit
Committee.
- Develop, supervise and administer the Employer's policy.
- Establish contact, coordinate and negotiate with the Employer's potential
acquisition targets.
- Ensure that all banks uphold the Employer's image.
- Manage general and active financial affairs of the Employer.
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