EXHIBIT 10.2
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT is made and effective this _27th_ day of
___August___, 1999 (the "Effective Date") by and between FLAG FINANCIAL
CORPORATION ("FLAG"), a Georgia corporation, and __Joel A. Dudley__, (the
"Executive").
STATEMENT OF BACKGROUND INFORMATION
A. The Executive currently serves as an officer of FLAG or of one of its
wholly owned subsidiaries (the "Employer").
B. The Employer and the Executive desire to enter into this agreement to
document certain terms and conditions of the Executive's employment relationship
with the Employer.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
promises herein contained, and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, the parties agree as
follows:
ARTICLE I. TERM OF AGREEMENT
This Agreement shall remain in effect for an initial term expiring March
31, 2002; provided that, at the end of the initial term, and at the end of each
twelve-month period thereafter during which this Agreement is in effect, this
Agreement shall automatically be extended for an additional twelve-month period
commencing at the end of the initial term or any subsequent extension thereof,
unless either party gives written notice to the other of its intent not to
extend this Agreement. Such written notice shall be given not less than ninety
(90) days prior to March 31, 2002 or any subsequent twelve-month period to which
this Agreement has been extended. In the event that notice of non-extension is
properly given, this Agreement shall terminate at the end of the remaining term
then in effect.
ARTICLE II. SEVERANCE BENEFIT
In the event of the Executive's Involuntary Termination of employment with
the Employer during the term of this Agreement for the reasons specified in
Article III below, the Employer shall pay to the Executive an amount equal to
the Executive's base salary and bonus paid over the last three full fiscal years
(or the compensation paid to the Executive for such shorter period as Executive
has been employed) of the Employer or its subsidiary bank immediately preceding
such involuntary termination (the "Severance Benefit"). For the period prior to
the Executive's employment by the Employer, the Executive's base compensation
shall be calculated as set forth on Exhibit "A'. The Severance Benefit shall be
paid in cash in a lump sum within thirty (30) days following the Involuntary
Termination.
The Employer shall be entitled to withhold appropriate employment and
income taxes, if required by applicable law, should the Severance Benefit become
payable.
ARTICLE III. PAYMENT EVENTS
The Severance Benefit described in Article II above shall become payable if
the Executive's employment is Involuntarily Terminated and either (i) such
Involuntary Termination occurred within six (6) months prior to or one (1) year
following a Change in Control as defined in Section 5.1(2) below, or (ii) such
Involuntary Termination occurred within three (3) years following the date of
this Agreement.
ARTICLE IV. PROTECTIVE COVENANTS
4.1 Confidential Information. As a senior management employee of the
Employer, the Executive has access to Confidential Information (as defined
herein). The Executive agrees to maintain the confidentiality of all
Confidential Information throughout the Term and for a period of one (1) year
after the termination of this Agreement. For purposes of this Section, the term
"Confidential Information" means data and information relating to the business
of the Employer which is or has been disclosed to the Executive or of which the
Executive has become aware as a consequence of or through his employment
relationship with the Employer and which has value to the Executive and is not
generally known to its competitors. Confidential Information shall not include
any data or information that has been voluntarily disclosed to the public by the
Employer (except where such public disclosure was effected by the Executive
without authorization) or that has been independently developed and disclosed by
others or that otherwise enters the public domain through lawful means.
4.2 Covenant Not to Compete. The Executive agrees, acknowledges and
understands that the nature, kind and character of the business conducted by the
Employer is highly competitive. Incident to the Executive engagement hereunder
and for the considerations contained herein, the Executive agrees that:
(1) during the term of this Agreement and for a period of twelve (12)
months following the later of the termination of this Agreement or the
resignation or Involuntary Termination of Executive, the Executive
will not, in the Georgia counties of Xxxxx, Xxxx and Muscogee or the
Alabama counties of Xxx and Xxxxxxx:
(a) enter into any employment relationship with any bank, thrift
institution, other entity providing financial services or an
affiliate of any of the foregoing in a capacity identical with or
substantially similar to the capacity in which he was employed by
the Employer at the time of his termination of employment;
(b) directly or indirectly, on his own behalf or in the service or on
behalf of others, solicit, divert, appropriate or attempt to
solicit, divert or appropriate, any business from any of the
Employer's customers with whom the Executive has had material
contact during the past two (2) years of the Executive's
employment, for purposes of providing products or services that
are competitive with those provided by the Employer; or
(c) on his 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 the
Employer, whether or not such employee is a full-time employee,
part-time or temporary employee of the Employer, and whether or
not such employment is pursuant to a written agreement or is for
a determined period or at will.
(2) by virtue of the duties and special knowledge of the affairs and
operations of the Employer that the Executive has and will obtain as a
result of his employment relationship with the Employer, a breach or
threatened breach by him of the provisions of this covenant not to
compete shall cause irreparable injury to the Employer and shall
entitle the Employer, in addition to any other remedy, to injunctive
relief against such breach or threatened breach.
The Executive acknowledges that the foregoing covenants are reasonable and
necessary to protect the interests of the Employer.
ARTICLE V. MISCELLANEOUS
5.1 Definitions. For purposes of this Agreement the terms set forth below
shall have the following meanings ascribed to them:
(1) "Cause" means conduct (a) constituting fraud or dishonesty resulting
in financial harm to the Employer or any of its affiliates; (b)
constituting a gross dereliction of the Executive's duties in the
capacity in which he is employed by the Employer; or (c) which results
in the successful criminal prosecution by federal, state or local
authorities for anything other than a misdemeanor relating to public
safety laws.
(2) "Change in Control" means any one of the following events which occurs
during the term of this Agreement or any extension:
(a) the acquisition by any person or persons acting in concert of the
then-outstanding voting shares of FLAG Financial Corporation,
after the transaction, the acquiring person or persons own,
control or hold with power to vote twenty-five percent (25%) or
more of any class of voting securities of FLAG Financial
Corporation or such other transactions as may be described under
12 C.F.R. @ 225.41(b)(1) or any successor thereto; or,
(b) the approval by the stockholders of FLAG Financial Corporation of
a reorganization, merger, share exchange or consolidation, with
respect to which persons who were the shareholders of FLAG
Financial Corporation immediately prior to such reorganization,
merger, share exchange or consolidation, do not, immediately
thereafter, own more than fifty percent (50%) of the combined
voting power entitled to vote at the election of directors of the
reorganized, merged, exchanged or consolidated company's then
outstanding voting securities; or
(c) the sale, transfer or assignment of all or substantially all of
the assets of FLAG Financial Corporation to any third party.
(3) "Involuntary Termination" means termination of Executive by the
Employer for any reason other than for Cause, and shall include for
purposes of this Agreement a 20% or greater reduction in base salary
or a material diminution in the duties and responsibilities of
Executive or a transfer of the Executive to another location more than
thirty (30) miles from the location of the office where Executive
employed at the time of the Change in Control.
5.2 Amendment. This Agreement may not be amended (in whole or in part)
orally or by course of performance, but only by a written instrument signed by
both parties.
5.3 Notice. Except as otherwise required under this Agreement, any notice
required or permitted to be given pursuant to this Agreement shall be
sufficiently given:
(1) to the Executive if in writing and personally delivered, or mailed
(and if mailed shall be deemed given three (3) business days after mailing)
registered or certified mail addressed to the Executive at the Executive's
residence as shown in the records of the Employer or at such address as the
Executive shall designate in a written notice to the Employer; and
(2) to the Employer if in writing and personally delivered to the
Chairman or President and CEO of the Employer or mailed (and if mailed,
shall be deemed given three (3) business days after mailing) registered or
certified mail addressed to FLAG Financial Corp., P. O. Xxx 0000, XxXxxxxx,
Xxxxxxx, 00000, Attn: Chairman or President.
5.4 Binding Effect. This Agreement shall inure to the benefit of and be
binding upon the Executive and upon the Employer and its successors and assigns.
The Executive may not assign his rights and obligations hereunder without the
written consent of the Employer.
5.5 Applicable Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Georgia.
5.6 No Defense. The existence of any claim or cause of action of the
Executive against the Employer, whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by the Employer of
any covenant contained in this Agreement.
5.7 Survival. The provisions of Article IV shall survive any termination of
this Agreement.
5.8 Thomaston Federal Savings Bank. Thomaston Federal Savings Bank,
Thomaston, Georgia is not a party to this Agreement and is not bound by any
provision of this Agreement.
IN WITNESS WHEREOF, the Employer has executed and delivered by its duly
authorized officer, and the Executive has signed, this Agreement all as of the
day and year first above written.
FLAG FINANCIAL CORPORATION:
By:___/s/ Xxx X. Washam________________________
Title:__Asst. Secretary_________________________
EXECUTIVE:
_____/s/ Xxxx X. Dudley___________________(SEAL)
Print Name:____Joel A. Dudley___________________
