EMPLOYMENT AGREEMENT
Exhibit
10.14
THIS
EMPLOYMENT AGREEMENT (“Agreement”), made and entered into as of January 3, 2008
(the “Effective Date”) by and between Xxxx Xxxxxxx, a resident of the State of
Georgia (“Employee”), and SouthCrest Financial Group, Inc., a Georgia
corporation (“Employer”).
W I T N E
S S E T H:
WHEREAS,
Employer desires to employ Employee as its Senior Vice President and Chief
Lending Officer and Employee desires to accept such employment;
NOW,
THEREFORE, in consideration of the employment of Employee by Employer, of the
premises and the mutual promises and covenants contained herein, and of other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1. Employment and
Duties.
1.1 Position. Employer
hereby employs Employee to serve as its Senior Vice President and Chief Lending
Officer and to perform such duties and responsibilities as are set forth in
Exhibit A attached hereto and
made part hereof by reference. During the term of this Agreement (as
defined in Section 2 herein), Employee will devote substantially all of his full
time and effort to his duties hereunder.
1.2 Other
Business Activities. The parties agree that the Employee shall be
free to engage in other non-competitive business activities and ventures during
the term of this Agreement, so long as any such other business activities and
ventures do not conflict or compete with the business of Employer or prevent the
Employee from the faithful performance of his duties hereunder.
2. Term.
Subject
to the provisions of Section 12 of this Agreement, the period of Employee’s
employment under this Agreement shall be deemed to have commenced as of the
Effective Date, and shall continue for a period of two (2) years, unless the
Employee dies before the end of such two (2) years, in which case the period of
employment shall end as of the date of death. The Agreement shall
automatically renew on each anniversary of the Effective Date such that upon
each such anniversary, the term of the Agreement shall continue for two (2) years, unless any party
shall deliver to the other party such party’s written notice of non-renewal no
later than ninety (90) days prior to any such anniversary.
3. Compensation.
For
all services to be rendered by Employee during the term of this
Agreement,
3.1 Base
Salary. Employer shall pay Employee an annual base salary equal to
$135,000 (the “Base Salary”), less normal withholdings, payable in equal monthly
or more frequent installments as are customary under Employer’s payroll
practices from time to time. Employer’s Board of Directors shall
review Employee’s Base Salary annually and may increase Employee’s Base Salary
from year to year during the term of this Agreement. Any Base Salary
increase (regardless of form), will be determined by the Employer’s Board of
Directors after taking into account, among other things, changes in the cost of
living, Employee’s performance and the performance of
Employer. Employee shall be entitled to annual incentive compensation
in such amount and subject to such criteria determined in consultation with
Employee and as the Employer’s Board of Directors may determine from year to
year. Any action or review by the Board of Directors may be delegated
to an appropriate committee thereof.
4. Expenses.
So
long as Employee is employed hereunder, Employee is entitled to receive
reimbursement for, or seek payment directly by Employer of, all reasonable
expenses which are consistent with the normal policy of Employer in the
performance of Employee’s duties hereunder, provided that Employee accounts for
such expenses in writing in accordance with Employer’s reimbursement policies as
may be adopted from time to time. The reimbursement of expenses described in
this Section 4 must be incurred by the Employee during the term of this
Agreement to be eligible for reimbursement. All reimbursements shall
be paid as soon as administratively practicable, but in no event shall any
reimbursement be paid after the last day of the calendar year following the
calendar year in which the expense was incurred, nor shall the amount of
reimbursable expenses incurred in one taxable year affect the expenses eligible
for reimbursement in any other taxable year.
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5.
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Employee
Benefits.
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So
long as Employee is actively employed hereunder, Employee will be entitled to
participate in the employee benefit, option, bonus and any other compensation
programs as may be available from time to time to executives of the Employer
similarly situated to Employee.
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6.
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Vacation.
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Employee
shall be entitled to three (3) weeks annual vacation.
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7.
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Confidentiality.
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In
Employee’s position as an employee of Employer, Employee has had and will have
access to confidential information, trade secrets and other proprietary
information of vital importance to Employer and has and will also develop
relationships with customers, employees and others who deal with Employer which
are of value to Employer. Employer requires as a condition to
Employee’s employment with Employer that Employee agree to certain restrictions
on Employee’s use of the proprietary information and valuable relationships
developed during Employee’s employment with Employer. In
consideration of the terms and conditions contained herein, the parties hereby
agree as follows:
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7.1 The
parties mutually agree and acknowledge that Employer may entrust Employee with
highly sensitive, confidential, restricted and proprietary information
concerning various Business Opportunities (as hereinafter defined), customer
lists, and personnel matters. Employee acknowledges that he shall
bear a fiduciary responsibility to Employer to protect such information from use
or disclosure that is not necessary for the performance of Employee’s duties
hereunder, as an essential incident of Employee’s employment with
Employer.
7.2 For
the purposes of this Section, the following definitions shall
apply:
7.2.1 “Trade
Secret” shall mean the identity and addresses of customers of Employer, the
whole or any portion or phase of any scientific or technical information,
design, process, procedure, formula or improvement that is valuable and secret
(in the sense that it is not generally known to competitors of Employer) and
which is defined as a “trade secret” under Georgia law pursuant to the Georgia
Trade Secrets Act.
7.2.2 “Confidential
Information” shall mean any data or information, other than Trade Secrets, which
is material to Employer and not generally known by the
public. Confidential Information shall include, but not be limited
to, Business Opportunities of Employer (as hereinafter defined), the details of
this Agreement, Employer’s business plans and financial statements and
projections, information as to the capabilities of Employer’s employees, their
respective salaries and benefits and any other terms of their employment, and
the costs of the services Employer may offer or provide to the customers it
serves, to the extent such information is material to Employer and not generally
known by the public.
7.2.3 “Business
Opportunities” shall mean any specialized information or plans of Employer
concerning the provision of financial services to the public, together with all
related information concerning the specifics of any contemplated financial
services regardless of whether Employer has contacted or communicated with such
target person or business.
7.2.4 Notwithstanding
the definitions of Trade Secrets, Confidential Information, and Business
Opportunities set forth above, Trade Secrets, Confidential Information, and
Business Opportunities shall not include any information:
(i) that
is or becomes generally known to the public;
(ii) that
is already known by Employee or is developed by Employee after termination of
employment through entirely independent efforts;
(iii) that
Employee obtains from an independent source having a bona fide right to use and
disclose such information;
(iv)
that is required to be disclosed by law, except to the extent eligible for
special treatment under an appropriate protective order; or
(v) that
Employer’s Board of Directors approves for release.
7.3 Employee
shall not, without the prior approval of Employer’s Board of Directors, during
his employment with Employer and for so long thereafter as the information or
data remain Trade Secrets, use or disclose, or negligently permit any
unauthorized person who is not an employee of Employer to use, disclose, or gain
access to, any Trade Secrets of Employer, its affiliates, or of any other person
or entity making Trade Secrets available for Employer’s use.
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7.4 Employee
shall not, without the prior written consent of Employer, during his employment
with Employer and for a period of twenty-four (24) months thereafter as long as
the information or data remains competitively sensitive, use or disclose, or
negligently permit any unauthorized person who is not employed by Employer to
use, disclose, or gain access to, any Confidential Information to which the
Employee obtained access by virtue of his employment with Employer, except as
provided in Section 7.2 of this Agreement.
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8.
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Observance of Security
Measures.
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During
Employee’s employment with Employer, Employee is required to observe all
security measures adopted to protect Trade Secrets, Confidential Information,
and Business Opportunities of Employer.
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9.
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Return of
Materials.
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Upon
the request of Employer and, in any event, upon the termination of his
employment with Employer, Employee shall deliver to Employer all memoranda,
notes, records, manuals or other documents, including all copies of such
materials containing Trade Secrets or Confidential Information, whether made or
compiled by Employee or furnished to him from any source by virtue of his
employment with Employer.
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10.
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Severability.
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Employee
acknowledges and agrees that the covenants contained in Sections 7, 8, 9 and 14
of this Agreement shall be construed as covenants independent of one another and
distinct from the remaining terms and conditions of this Agreement, and
severable from every other contract and course of business between Employer and
Employee, and that the existence of any claim, suit or action by Employee
against Employer, whether predicated upon this or any other agreement, shall not
constitute a defense to Employer’s enforcement of any covenant contained in
Sections 7, 8, 9 and 14 of this Agreement.
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11.
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Specific
Performance.
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Employee
acknowledges and agrees that the covenants contained in Sections 7, 8, 9 and 14
of this Agreement shall survive any termination of employment, as applicable,
with or without Cause (as defined in Section 12 hereof), at the instigation or
upon the initiative of either party. Employee further acknowledges
and agrees that the ascertainment of damages in the event of Employee’s breach
of any covenant contained in Sections 7, 8, 9 and 14 of this Agreement would be
difficult, if at all possible. Employee therefore acknowledges and
agrees that Employer shall be entitled in addition to and not in limitation of
any other rights, remedies, or damages available to Employer in arbitration, at
law or in equity, upon submitting whatever affidavit the law may require, and
posting any necessary bond, to have a court of competent jurisdiction enjoin
Employee from committing any such breach.
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12.
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Termination.
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During
the term of this Agreement, Employee’s employment, including without limitation,
except as otherwise provided in Section 12 of this Agreement, all compensation,
salary, expenses reimbursement, and employee benefits may be terminated as
follows:
12.1 At
the election of Employer for Cause;
12.2 At
Employee’s election upon Employer’s breach of any material provision of this
Agreement;
12.3 “Cause”
shall mean (i) material dishonesty, gross negligence or willful misconduct by
Employee in the performance of his duties hereunder which conduct results in
material financial or reputational harm to Employer or its affiliates; (ii)
conviction (from which no appeal may be, or is, timely taken) of Employee of a
felony; (iii) initiation of suspension or removal proceedings against Employee
by federal or state regulatory authorities acting under lawful authority
pursuant to provisions of federal or state law or regulation which may be in
effect from time to time; (iv) knowing violation by Employee of federal or state
banking laws or regulations; or (v) refusal by Employee to perform a duly
authorized and lawful written directive of Employer’s President and Chief
Executive Officer and/or Board of Directors.
12.4 Upon
Employee’s death, or, at the election of either party, upon Employee’s
disability as determined in accordance with the standards and procedures under
Employer’s then-current long-term disability insurance coverage provided by
Employer, or, if such disability insurance coverage provided by Employer is not
then in place, upon Employee’s disability resulting in his inability to perform
the duties described in Section 1.1 of this Agreement for a period of one
hundred eighty (180) consecutive days.
12.5 If
this Agreement is terminated either (i) by Employer at any time for any reason
other than for Cause or (ii) upon Employer’s breach of this Agreement and such
termination constitutes a separation from service under Treas. Reg. Section
1.409A-1(h) (or any successor provision), then Employer shall pay to Employee as
Employer’s sole remaining obligation to Employee under this Agreement the sum of
the following: (a) Employee’s Base Salary for the remaining months of
the term of this Agreement at the Base Salary rate then in effect; (b)
reimbursement for the cost of COBRA health continuation coverage for Employee
for the lesser of (1) the remaining months of the term of this Agreement, or (2)
the period during which Employee is entitled to COBRA health continuation
coverage from the Employer; and (c) the cost for term life insurance coverage
for Employee for the remaining months of the term of this Agreement in an amount
not to exceed the monthly cost of premiums for such coverage in effect on the
effective date of termination. The amounts described in Clauses (a)
and (c) above shall be paid in substantially equal monthly installments over the
remaining months of the term of this Agreement commencing with the month
following the month in which the termination is effective.
12.6 If
the Agreement is terminated either for Cause or pursuant to Section 12.4 of this
Agreement, Employee shall receive no further compensation or benefits, other
than Employee’s Base Salary and other compensation as accrued through the
effective date of such termination.
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12.7 Notwithstanding
any provision in the Agreement to the contrary, if the Employee is a “specified
employee” within the meaning of Code Section 409A of the Internal Revenue Code
of 1986, as amended (the “Code”) at the date of his termination of employment,
then such portion of the payments provided for in this Section 12 (or Section
15) that would result in a tax under Code Section 409A if paid during the first
six (6) months after termination of employment shall be withheld, starting with
the payments latest in time during such six (6) month period, and paid to the
Employee during the seventh month following the date of his termination of
employment.
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13.
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Notice.
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All
notice provided for herein shall be in writing and shall be deemed to be given
when delivered in person or deposited in the United States Mail, registered or
certified, return receipt requested, with proper postage prepaid and addressed
as follows:
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Employer:
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SouthCrest
Financial Group, Inc.
000
Xxxxx Xxxxx Xxxxxx
Xxxxx
X
Xxxxxxxxxxxx,
Xxxxxxx 00000
Attn: Xxxxx
X. Xxxxxx
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Employee:
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Xxxx
Xxxxxxx
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with
a copy to:
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Xxxxxx
Xxxxxxxxx LLP
One
Atlantic Center
Fourteenth
Floor
0000
Xxxx Xxxxxxxxx Xxxxxx XX
Xxxxxxx,
Xxxxxxx 00000-0000
Attn: Xxxxxx
X. Xxxxxxx, XX, Esquire
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14.
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Covenant Not to Compete and
Not to Solicit.
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14.1 For
purposes of this Section 14, Employer and Employee conduct the following
business in the following geographic areas:
14.1.1 Employer
is engaged in the business of commercial banking (“Business of
Employer”).
14.1.2 As
of the Effective Date, Employer conducts the Business of Employer from its main
office located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx X, Xxxxxxxxxxxx,
Xxxxxxx 00000 (the “Holding Company Office”).
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14.1.3 Employee
has established business relationships and performs the duties described in
Section 1.1 of this Agreement in the geographic area covered by Fayette,
Meriwether, Polk, Xxxxx and Xxxxxx Counties, Georgia and Xxxxxxx County, Alabama
(the “Restricted Area”), and will work primarily in the Restricted Area while in
the employ of Employer.
14.2 Employee
covenants and agrees that both during the term of this Agreement and for a
period of one (1) year after the termination of his employment with Employer for
any reason other than a resignation pursuant to Section 15.3 of this Agreement,
Employee shall not, directly or indirectly, as principal, agent, trustee,
consultant or through the agency of any corporation, partnership, association,
trust or other entity or person, on Employee’s own behalf or for others, provide
the duties described in Section 1.1 of this Agreement within the Restricted Area
for any entity or person conducting the Business of Employer.
14.3 Employee
covenants and agrees that both during the term of this Agreement and for a
period of one (1) year after the termination of his employment with Employer for
any reason, Employee will not enter into, and will not participate in, any plan
or arrangement to cause any employee of the Employer to terminate his or her
employment with Employer, and, Employee further agrees that for a period of at
least one (1) year after the termination of employment by any employee of
Employer, Employee will not hire such employee in connection with any business
initiated by Employee or any other person, firm or
corporation. Employee further agrees that information as to the
capabilities of Employer’s employees, their salaries and benefits, and any other
terms of their employment is Confidential Information and proprietary to the
Employer.
14.4 Employee covenants and
agrees that both during the term of this Agreement and for a period of one (1)
year after the termination of his employment with Employer for any reason, he
will not (except on behalf of or with the prior written consent of the
Employer), within the Restricted Area, on his own behalf or in the service of or
on behalf of others, solicit, divert or appropriate or attempt to solicit,
divert or appropriate, any business from any of the Employer’s customers,
including prospective customers actively sought by the Employer, with whom the
Employee has or had material contact during the last two (2) years of his
employment, for purposes of providing products or services that are competitive
with those provided by the Employer.
14.5 Employee
and Employer shall periodically amend this Agreement by updating the Restricted
Area referenced in Section 14.1.3 of this Agreement so that it at all times
lists the then current geographic area served by Employer for which Employee
performs the duties described in Section 1.1 of this Agreement.
14.6 The
covenants contained in this Section 14 shall be construed as agreements
severable from and independent of each other and of any other provision of this
or any other contract or agreement between the parties hereto. The
existence of any claim or cause of action by Employee against Employer, whether
predicated upon this or any other contract or agreement, shall not constitute a
defense to the enforcement by Employer of said covenants.
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15. Change in
Control.
None of the benefits provided in Section 15 of this Agreement shall be payable
to Employee unless (i) there shall have been a Change in Control of Employer, as
set forth in this Section 15, and (ii) Employee is employed by Employer when the
Change in Control occurs.
15.1 “Change
in Control” shall be deemed to have occurred upon the first to occur of the
following events:
15.1.1 The acquisition by
any one person, or more than one person acting as a group (other than any person
or more than one person acting as a group who is considered to own more than
fifty percent (50%) of the total fair market of the stock of the Employer prior
to such acquisition), of stock of the Employer that, together with stock held by
such person or group, constitutes more than fifty percent (50%) of the total
fair market value or total voting power of the stock of the
Employer;
15.1.2 Within any twelve-month period (beginning on or after the
Effective Date) the date a majority of members of the Employer’s Board of
Directors is replaced by directors whose appointment or election is not endorsed
by a majority of the members of the Employer’s Board of Directors before the
date of the appointment or election;
15.1.3 Within any
twelve-month period (beginning on or after the Effective Date) the acquisition
by any one person, or more than one person acting as a group, of ownership of
stock of the Employer possessing thirty percent (30%) or more of the total
voting power of the stock of the Employer;
15.1.4 Within any
twelve-month period (beginning on or after the Effective Date) the acquisition
by any one person, or more than one person acting as a group, of the assets of
the Employer that have a total gross fair market value of eighty-five percent
(85%) or more of the total gross fair market value of all of the assets of the
Employer immediately before such acquisition or acquisitions; provided, however,
that transfers to the following entities or person(s) shall not be deemed to
result in a Change in Control under this Section 15.1.4: (i) an
entity that is controlled by the shareholders of the Employer immediately after
the transfer; (ii) a shareholder (determined immediately before the asset
transfer) of the Employer in exchange for or with respect to its stock; (iii) an
entity, fifty percent (50%) or more of the total value or voting power of which
is owned, directly or indirectly, by the Employer; (iv) a person, or more than
one person acting as a group, that owns, directly or indirectly, fifty percent
(50%) or more of the total value or voting power of all the outstanding stock of
the Employer; or (v) an entity, at least fifty percent (50%) of the total value
or voting power of which is owned, directly or indirectly, by a person described
in the above Section 15.1.4(iv).
For
purposes of this Section 15.1, persons will be considered to be acting as a
group if they are owners of a corporation that enters into a merger,
consolidation, purchase or acquisition of stock, or similar business transaction
with the Employer. Notwithstanding the foregoing, no Change in
Control shall be deemed to have occurred for purposes of this Agreement by
reason of any actions or events in which the Employee participates in a capacity
other than in the Employee’s capacity as an employee.15.2In the event of a
Change in Control of Employer, if Employer terminates Employee without Cause, or
if Employer takes any action specified in Section 15.3 of this Agreement, in
either case, within twenty-four (24) months following the date of occurrence of
a Change in Control of Employer (“Termination of Employment”), Employer shall
pay Employee a lump sum cash payment in an amount equal to the product of one
(1) multiplied by Employee’s annual compensation from Employer, including
salary, bonuses, all perquisites, and all other forms of compensation paid to
Employee for his benefit or the benefit of his family, however characterized,
for the fiscal year during the term of this Agreement for which such
compensation was highest. The payment provided for in this Section
15.2 shall be due and payable to Employee within thirty (30) days after the date
of the Termination of Employment. In no event shall payment(s)
described in this Section exceed the amount permitted by Section 280G of the
Code. Therefore, if the aggregate present value (determined as of the
date of the Change in Control in accordance with the provisions of
Section 280G of the Code) of both the severance payment and all other
payments to the Employee in the nature of compensation which are contingent on a
change in ownership or effective control of Employer or in the ownership of a
substantial portion of the assets of Employer (the “Aggregate Severance”) would
result in a “parachute payment,” as defined under Section 280G of the Code,
then the Aggregate Severance shall not be greater than an amount equal to 2.99
multiplied by Employee’s “base amount” for the “base period,” as those terms are
defined under Section 280G of the Code. In the event the
Aggregate Severance is required to be reduced pursuant to this Section 15.2, the
last payments in time shall be reduced first.
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15.3 During
the remaining term of this Agreement following the effective date of a Change in
Control, if Employer takes any of the following actions, such action shall be
deemed to be a termination by Employer without Cause. Those actions
are: (i) a material reduction in Employee’s Base Salary, bonus provisions or
other perquisites as were in effect immediately prior to a Change in Control of
Employer, (ii) a material change in Employee’s status, offices, titles or
reporting requirements, duties or responsibilities with Employer as in effect
immediately prior to the effective date of the Change in Control, (iii) a
failure by Employer to increase Employee’s Base Salary annually in accordance
with an established procedure, or (iv) due to Employer’s requirement that
Employee relocate his principal place of business by more than twenty-five (25)
miles from the Holding Company Office. In any such event, Employee
shall be entitled to all payments provided for in Section 15.2 of this
Agreement.
16. Miscellaneous.
16.1 This
Agreement constitutes and expresses the whole agreement of the parties in
reference to the employment of Employee by Employer, and there are no
representations, inducements, promises, agreements, arrangements, or
undertakings oral or written, between the parties other than those set forth
herein.
16.2 This
Agreement shall be governed by 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
court.
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16.3 Should any clause or
any other provision of this Agreement be determined to be void or unenforceable
for any reason, such determination shall not affect the validity or
enforceability of any clause or provision of this Agreement, all of which shall
remain in full force and effect.
16.4 Time
is of the essence in this Agreement.
16.5 This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and assigns. This Agreement shall not be
assignable by any other parties hereto without the prior written consent of the
other parties.
16.6 This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original and all of which taken together shall constitute but a single
instrument.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and year
first written above.
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“Employee”
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(SEAL)
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Witness
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Xxxx
Xxxxxxx
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“Employer”
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ATTEST
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SouthCrest
Financial Group, Inc.
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By:
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Its:
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,
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(CORPORATE
SEAL)
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