EXHIBIT 10.4
EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into this 15th day of July, 1996 ("Effective
Date"), by and between Xxxxxxx County Federal Savings and Loan Association (the
"Association") and Xx. Xxxxxxx Xxxxxxxx (the "Employee").
WHEREAS, the Employee is experienced in all phases of the management
and operations of a insured financial institution and is experienced in all
phases of the business of the Association; and
WHEREAS, the parties desire by this writing to set forth the employment
relationship of the Association and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. Upon the Effective Date, the Employee shall be employed
in the capacity as the Chief Administrative Officer of the Association reporting
directly to the President of the Association. The Employee shall render such
administrative and management services to the Association and CCF Holding
Company ("Parent") as are customarily performed by persons situated in a similar
executive capacity. The Employee shall promote to the extent permitted by law
the business of the Association and Parent. The Employee's other duties shall be
such as the President or the Board of Directors for the Association (the "Board
of Directors" or "Board") may from time to time reasonably direct, including
normal duties as an officer of the Association.
2. Base Compensation. As of the Effective Date, the Association agrees
to pay the Employee during the term of this Agreement a salary at the rate of
$80,000.00 per annum, payable in cash not less frequently than semi-monthly;
provided, that the rate of such base salary and total compensation shall be
reviewed by the Board of Directors not less often than annually, and such salary
shall be subject to revision from time to time within the sole discretion of the
President and the Board upon a determination that the performance of the
Employee has met the requirements and standards of the President and the Board,
and that such base salary shall be adjusted.
3. Discretionary Bonus. The Employee shall be entitled to participate
in an equitable manner with all other senior management employees of the
Association in discretionary bonuses that may be authorized and declared by the
Board of Directors to its senior management employees from time to time. No
other compensation provided for in this Agreement shall be deemed a substitute
for the Employee's right to participate in such discretionary bonuses when and
as declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee
shall be entitled to participate in any plan of the Association relating to
pension, profit-sharing, or other
retirement benefits and medical coverage or reimbursement plans that the
Association may adopt for the benefit of its employees.
(b) Employee Benefits; Expenses. The Employee shall be eligible to
participate in any fringe benefits which may be or may become applicable to the
Association's senior management employees. The Association shall reimburse
Employee for all reasonable out-of-pocket expenses which Employee shall incur in
connection with his service for the Association.
5. Term. The term of employment of Employee under this Agreement shall
be for the period commencing on the Effective Date and ending twenty-four months
thereafter. Additionally, not later than on each annual anniversary date from
the Effective Date, the term of employment under this Agreement shall be
extended for up to an additional one year period beyond the then effective
expiration date so that the remaining term of the Agreement shall be for
twenty-four months thereafter upon a determination and resolution of the Board
of Directors that the performance of the Employee has met the requirements and
standards of the Board, and that the term of such Agreement shall be extended.
6. Loyalty; Noncompetition.
(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Association or Parent.
(b) Nothing contained in this Section 6 shall be deemed to prevent or
limit the right of Employee to invest in the capital stock or other securities
of any business dissimilar from that of the Association or Parent, or, solely as
a passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards expected of employees
with comparable positions in comparable organizations and as may be established
from time to time by the Board of Directors.
8. Vacation and Sick Leave. At such reasonable times as the President
or the Board of Directors shall in its discretion permit, the Employee shall be
entitled to absent himself voluntarily from the performance of his employment
under this Agreement as follows:
(a) The Employee shall be entitled to annual vacation leave in
accordance with the policies as are periodically established by the Board of
Directors for senior management employees of the Association.
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(b) The Employee shall not be entitled to receive any additional
compensation from the Association on account of his failure to take vacation
leave and Employee shall not be entitled to accumulate unused vacation from one
fiscal year to the next, except in either case to the extent authorized by the
Board of Directors for senior management employees of the Association.
(c) In addition, the Employee shall be entitled to an annual sick leave
benefit as established by the Board of Directors for senior management employees
of the Association.
9. Termination and Termination Pay.
The Employee's employment under this Agreement shall be terminated upon
any of the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the compensation
due the Employee through the last day of the calendar month in which Employee's
death shall have occurred.
(b) The Board of Directors may terminate the Employee's employment at
any time, but any termination by the Board of Directors other than termination
for Just Cause, shall not prejudice the Employee's right to compensation or
other benefits under the Agreement. The Employee shall have no right to receive
compensation or other benefits for any period after termination for Just Cause.
Termination for "Just Cause" shall include termination because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of the Agreement.
(c) Except as provided pursuant to Section 12 herein, in the event
Employee's employment under this Agreement is terminated by the Board of
Directors without Just Cause, the Association shall be obligated to continue to
pay the Employee the salary provided pursuant to Section 2 herein in effect as
of the date prior to such date of termination of employment for a period of
twenty-four months thereafter and the cost of Employee obtaining all health,
life, disability, and other benefits which the Employee would be eligible to
participate in through such date based upon the benefit levels substantially
equal to those being provided Employee at the date of termination of employment.
(d) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA")
(12 U.S.C. 1818(e)(4) and (g)(1)),
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all obligations of the Association under this Agreement shall terminate, as of
the effective date of the order, but the vested rights of the parties shall not
be affected.
(e) If the Association is in default (as defined in Section 3(x)(1) of
FDIA) all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
(f) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Association: (i) by the Director of the Office of
Thrift Supervision ("Director of OTS"), or his or her designee, at the time that
the Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Association under the authority contained in Section 13(c) of FDIA; or (ii)
by the Director of the OTS, or his or her designee, at the time that the
Director of the OTS, or his or her designee approves a supervisory merger to
resolve problems related to operation of the Association or when the Association
is determined by the Director of the OTS to be in an unsafe or unsound
condition. Any rights of the parties that have already vested, however, shall
not be affected by such action.
(g) The voluntary termination by the Employee during the term of this
Agreement with the delivery of no less than 60 days written notice to the Board
of Directors, other than pursuant to Section 12(b), in which case the Employee
shall be entitled to receive only the compensation, vested rights, and all
employee benefits up to the date of such termination.
(h) Notwithstanding anything herein to the contrary, any payments made
to the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC ss.1828(k) and any regulations
promulgated thereunder.
10. Suspension of Employment . If the Employee is suspended and/or
temporarily prohibited from participating in the conduct of the Association's
affairs by a notice served under Section 8(e)(3) or (g)(1) of the FDIA (12
U.S.C. 1818(e)(3) and (g)(1)), the Association's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Association may in
its discretion (i) pay the Employee all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate any of its
obligations which were suspended.
11. Disability. If the Employee shall become disabled or incapacitated
to the extent that he is unable to perform his duties hereunder, by reason of
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of
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Directors, Employee shall receive the compensation and benefits provided under
the provisions of disability insurance coverage in effect for Association
employees. Upon returning to active full-time employment, the Employee's full
compensation as set forth in this Agreement shall be reinstated as of the date
of commencement of such activities. In the event that the Employee returns to
active employment on other than a full-time basis, then his compensation (as set
forth in Section 2 of this Agreement) shall be reduced in proportion to the time
spent in said employment, or as shall otherwise be agreed to by the parties.
12. Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the event
of the involuntary termination of Employee's employment under this Agreement,
absent Just Cause, in connection with, or within twelve (12) months after, any
change in control of the Association or Parent, Employee shall be paid an amount
equal to the product of 2.99 times the Employee's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")
and regulations promulgated thereunder. Said sum shall be paid, at the option of
Employee, either in one (1) lump sum within thirty (30) days of such termination
discounted to the present value of such payment using as the discount rate the
"prime rate" as published in the Wall Street Journal Eastern Edition as of the
date of such payment, or in periodic payments over the next 36 months or the
remaining term of this Agreement whichever is less, as if Employee's employment
had not been terminated, and such payments shall be in lieu of any other future
payments which the Employee would be otherwise entitled to receive under Section
9 of this Agreement. Notwithstanding the forgoing, all sums payable hereunder
shall be reduced in such manner and to such extent so that no such payments made
hereunder when aggregated with all other payments to be made to the Employee by
the Association or the Parent shall be deemed an "excess parachute payment" in
accordance with Section 280G of the Code and be subject to the excise tax
provided at Section 4999(a) of the Code. The term "control" shall refer to the
ownership, holding or power to vote more than 25% of the Parent's or
Association's voting stock, the control of the election of a majority of the
Parent's or Association's directors, or the exercise of a controlling influence
over the management or policies of the Parent or Association by any person or by
persons acting as a group within the meaning of Section 13(d) of the Securities
Exchange Act of 1934. The term "person" means an individual other than the
Employee, or a corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntary terminate his employment under this Agreement
within twelve (12) months following a change in control of the Association or
Parent, and Employee shall thereupon
5
be entitled to receive the payment described in Section 12(a) of this Agreement,
upon the occurrence, or within ninety (90) days thereafter, of any of the
following events, which have not been consented to in advance by the Employee in
writing: (i) if Employee would be required to move his personal residence or
perform his principal executive functions more than thirty-five (35) miles from
the Employee's primary office as of the signing of this Agreement; (ii) if in
the organizational structure of the Association or Parent, Employee would be
required to report to a person or persons other than the President or the Board
of the Association or Parent; (iii) if the Association or Parent should fail to
maintain Employee's base compensation in effect as of the date of the Change in
Control and the existing employee benefits plans, including material fringe
benefit, stock option and retirement plans; (iv) if Employee would be assigned
duties and responsibilities other than those normally associated with his
position as referenced at Section 1, herein; (v) if Employee would not be
reelected to the Board of Directors of the Association; or (vi) if Employee's
responsibilities or authority have in any way been materially diminished or
reduced.
(c) In the event any dispute shall arise between the Employee and the
Association as to the terms or interpretation of this Agreement, including this
Section 12, whether instituted by formal legal proceedings or otherwise,
including any action taken by Employee to enforce the terms of this Section 12
or in defending against any action taken by the Association or Parent, the
Association or Parent shall reimburse Employee for all costs and expenses,
including reasonable attorneys' fees, arising from such dispute, proceedings or
actions following issuance of a legal judgement by a court of competent
jurisdiction finding in favor of the Employee or the settlement of the dispute
by the parties. Such settlement to be approved by the Board of the Association
or the Parent may include a provision for the reimbursement by the Association
or Parent to the Employee for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, or the Board
of the Association or the Parent shall authorize such reimbursement of such
costs and expenses by separate action upon a written action and determination of
the Board that payment of such costs and expenses is not detrimental to the
Association or the Parent. Such reimbursement shall be paid within ten (10) days
of Employee furnishing to the Association or Parent evidence, which may be in
the form, among other things, of a canceled check or receipt, of any costs or
expenses incurred by Employee.
13. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Association or Parent which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Association or
Parent.
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(b) Since the Association is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Association.
14. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
15. Applicable Law. This agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Georgia, the extent that Federal law shall be deemed to
apply.
16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
17. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
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EMPLOYMENT AGREEMENT
THIS AGREEMENT entered into this 1st day of November 1996 ("Effective
Date"), by and between Xxxxxxx County Federal Savings and Loan Association (the
"Association") and Xx. Xxxx X. XxXxxx (the "Employee").
WHEREAS, the Employee is experienced in all phases of the management
and operations of a insured financial institution and is experienced in all
phases of the business of the Association; and
WHEREAS, the parties desire by this writing to set forth the employment
relationship of the Association and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. Upon the Effective Date, the Employee shall be employed
in the capacity as an Executive Vice President of the Association reporting
directly to the Chief Administrative Officer of the Association. The Employee
shall render such administrative and management services to the Association and
CCF Holding Company ("Parent") as are customarily performed by persons situated
in a similar executive capacity. The Employee shall promote to the extent
permitted by law the business of the Association and Parent. The Employee's
other duties shall be such as the President or the Board of Directors for the
Association (the "Board of Directors" or "Board") may from time to time
reasonably direct, including normal duties as an officer of the Association.
2. Base Compensation. As of the Effective Date, the Association agrees
to pay the Employee during the term of this Agreement a salary at the rate of
$90,000.00 per annum, payable in cash not less frequently than semi-monthly;
provided, that the rate of such base salary and total compensation shall be
reviewed by the Board of Directors not less often than annually, and such salary
shall be subject to revision from time to time within the sole discretion of the
President and the Board upon a determination that the performance of the
Employee has met the requirements and standards of the President and the Board,
and that such base salary shall be adjusted.
3. Discretionary Bonus. The Employee shall be entitled to participate
in an equitable manner with all other senior management employees of the
Association in discretionary bonuses that may be authorized and declared by the
Board of Directors to its senior management employees from time to time. No
other compensation provided for in this Agreement shall be deemed a substitute
for the Employee's right to participate in such discretionary bonuses when and
as declared by the Board of Directors.
4. (a) Participation in Retirement and Medical Plans. The Employee
shall be entitled to participate in any plan of the Association relating to
pension, profit-sharing, or other retirement benefits and medical coverage or
reimbursement plans that the Association may adopt for the benefit of its
employees.
(b) Employee Benefits; Expenses. The Employee shall be eligible to
participate in any fringe benefits which may be or may become applicable to the
Association's senior management employees. The Association shall reimburse
Employee for all reasonable out-of-pocket expenses which Employee shall incur in
connection with his service for the Association.
5. Term. The term of employment of Employee under this Agreement shall
be for the period commencing on the Effective Date and ending twenty-four months
thereafter. Additionally, not later than on each annual anniversary date from
the Effective Date, the term of employment under this Agreement shall be
extended for up to an additional one year period beyond the then effective
expiration date so that the remaining term of the Agreement shall be for
twenty-four months thereafter upon a determination and resolution of the Board
of Directors that the performance of the Employee has met the requirements and
standards of the Board, and that the term of such Agreement shall be extended.
6. Loyalty; Noncompetition.
(a) The Employee shall devote his full time and attention to the
performance of his employment under this Agreement. During the term of
Employee's employment under this Agreement, the Employee shall not engage in any
business or activity contrary to the business affairs or interests of the
Association or Parent.
(b) Nothing contained in this Section 6 shall be deemed to prevent or
limit the right of Employee to invest in the capital stock or other securities
of any business dissimilar from that of the Association or Parent, or, solely as
a passive or minority investor, in any business.
(c) In consideration of entering into this Agreement and the sums
payable by the Association under this Agreement, Employee agrees that for a
period of not less than one year from the date of termination of employment with
the Association in accordance with Section 9 hereinafter, whether such
termination is initiated by the Employee or the Association, Employee shall not
engage in providing professional service or employment as an employee, director,
consultant, representative, or similar relationship to any financial services
enterprise (including but not limited to a savings and loan association, bank,
credit union, or insurance company) with offices or business activities located
in Fayette County in the State of Georgia. Breach of this provision not to
compete with the business of the Association shall result in the
2
forfeiture of all compensation and benefits eligibility to be provided in
accordance with Section 9(c) herein, as may be applicable, as well as the
Association seeking such other legal remedies, including but not limited to
seeking injunctive relief and monetary damages for such contract breach. This
limitation on future activities shall not affect the payment of compensation
payable in accordance with Section 12 of the Agreement.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards expected of employees
with comparable positions in comparable organizations and as may be established
from time to time by the Board of Directors.
8. Vacation and Sick Leave. At such reasonable times as the President
or the Board of Directors shall in its discretion permit, the Employee shall be
entitled to absent himself voluntarily from the performance of his employment
under this Agreement as follows:
(a) The Employee shall be entitled to annual vacation leave in
accordance with the policies as are periodically established by the Board of
Directors for senior management employees of the Association.
(b) The Employee shall not be entitled to receive any additional
compensation from the Association on account of his failure to take vacation
leave and Employee shall not be entitled to accumulate unused vacation from one
fiscal year to the next, except in either case to the extent authorized by the
Board of Directors for senior management employees of the Association.
(c) In addition, the Employee shall be entitled to an annual sick leave
benefit as established by the Board of Directors for senior management employees
of the Association.
9. Termination and Termination Pay.
The Employee's employment under this Agreement shall be terminated upon
any of the following occurrences:
(a) The death of the Employee during the term of this Agreement, in
which event the Employee's estate shall be entitled to receive the compensation
due the Employee through the last day of the calendar month in which Employee's
death shall have occurred.
3
(b) The Board of Directors may terminate the Employee's employment at
any time, but any termination by the Board of Directors other than termination
for Just Cause, shall not prejudice the Employee's right to compensation or
other benefits under the Agreement. The Employee shall have no right to receive
compensation or other benefits for any period after termination for Just Cause.
Termination for "Just Cause" shall include termination because of the Employee's
personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, or material breach of any
provision of the Agreement.
(c) Except as provided pursuant to Section 12 herein, in the event
Employee's employment under this Agreement is terminated by the Board of
Directors without Just Cause, the Association shall be obligated to continue to
pay the Employee the salary provided pursuant to Section 2 herein in effect as
of the date prior to such date of termination of employment for a period of
twenty-four months thereafter and the cost of Employee obtaining all health,
life, disability, and other benefits which the Employee would be eligible to
participate in through such date based upon the benefit levels substantially
equal to those being provided Employee at the date of termination of employment.
Payments hereunder shall be subject to the limitations set forth at Section
6(c), herein.
(d) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Association's affairs by an order issued
under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act ("FDIA")
(12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Association under this
Agreement shall terminate, as of the effective date of the order, but the vested
rights of the parties shall not be affected.
(e) If the Association is in default (as defined in Section 3(x)(1) of
FDIA) all obligations under this Agreement shall terminate as of the date of
default, but this paragraph shall not affect any vested rights of the
contracting parties.
(f) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Association: (i) by the Director of the Office of
Thrift Supervision ("Director of OTS"), or his or her designee, at the time that
the Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Association under the authority contained in Section 13(c) of FDIA; or (ii)
by the Director of the OTS, or his or her designee, at the time that the
Director of the OTS, or his or her designee approves a supervisory merger to
resolve problems related to operation of the Association or when the Association
is determined
4
by the Director of the OTS to be in an unsafe or unsound condition. Any rights
of the parties that have already vested, however, shall not be affected by such
action.
(g) The voluntary termination by the Employee during the term of this
Agreement with the delivery of no less than 60 days written notice to the Board
of Directors, other than pursuant to Section 12(b), in which case the Employee
shall be entitled to receive only the compensation, vested rights, and all
employee benefits up to the date of such termination.
(h) Notwithstanding anything herein to the contrary, any payments made
to the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC ss.1828(k) and any regulations
promulgated thereunder.
10. Suspension of Employment . If the Employee is suspended and/or
temporarily prohibited from participating in the conduct of the Association's
affairs by a notice served under Section 8(e)(3) or (g)(1) of the FDIA (12
U.S.C. 1818(e)(3) and (g)(1)), the Association's obligations under the Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, the Association may in
its discretion (i) pay the Employee all or part of the compensation withheld
while its contract obligations were suspended and (ii) reinstate any of its
obligations which were suspended.
11. Disability. If the Employee shall become disabled or incapacitated
to the extent that he is unable to perform his duties hereunder, by reason of
medically determinable physical or mental impairment, as determined by a doctor
engaged by the Board of Directors, Employee shall receive the compensation and
benefits provided under the provisions of disability insurance coverage in
effect for Association employees. Upon returning to active full-time employment,
the Employee's full compensation as set forth in this Agreement shall be
reinstated as of the date of commencement of such activities. In the event that
the Employee returns to active employment on other than a full-time basis, then
his compensation (as set forth in Section 2 of this Agreement) shall be reduced
in proportion to the time spent in said employment, or as shall otherwise be
agreed to by the parties.
12. Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the event
of the involuntary termination of Employee's employment under this Agreement,
absent Just Cause, in connection with, or within twelve (12) months after, any
change in control of the Association or Parent, Employee shall be paid an amount
equal to the product of 2.99 times the Employee's "base amount" as defined in
Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code")
and regulations promulgated thereunder. Said
5
sum shall be paid, at the option of Employee, either in one (1) lump sum within
thirty (30) days of such termination discounted to the present value of such
payment using as the discount rate the "prime rate" as published in the Wall
Street Journal Eastern Edition as of the date of such payment, or in periodic
payments over the next 36 months or the remaining term of this Agreement
whichever is less, as if Employee's employment had not been terminated, and such
payments shall be in lieu of any other future payments which the Employee would
be otherwise entitled to receive under Section 9 of this Agreement.
Notwithstanding the forgoing, all sums payable hereunder shall be reduced in
such manner and to such extent so that no such payments made hereunder when
aggregated with all other payments to be made to the Employee by the Association
or the Parent shall be deemed an "excess parachute payment" in accordance with
Section 280G of the Code and be subject to the excise tax provided at Section
4999(a) of the Code. The term "control" shall refer to the ownership, holding or
power to vote more than 25% of the Parent's or Association's voting stock, the
control of the election of a majority of the Parent's or Association's
directors, or the exercise of a controlling influence over the management or
policies of the Parent or Association by any person or by persons acting as a
group within the meaning of Section 13(d) of the Securities Exchange Act of
1934. The term "person" means an individual other than the Employee, or a
corporation, partnership, trust, association, joint venture, pool, syndicate,
sole proprietorship, unincorporated organization or any other form of entity not
specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary, Employee may voluntary terminate his employment under this Agreement
within twelve (12) months following a change in control of the Association or
Parent, and Employee shall thereupon be entitled to receive the payment
described in Section 12(a) of this Agreement, upon the occurrence, or within
ninety (90) days thereafter, of any of the following events, which have not been
consented to in advance by the Employee in writing: (i) if Employee would be
required to move his personal residence or perform his principal executive
functions more than thirty-five (35) miles from the Employee's primary office as
of the signing of this Agreement; (ii) if in the organizational structure of the
Association or Parent, Employee would be required to report to a person or
persons other than the Chief Administrative Officer, the President or the Board
of the Association or Parent; (iii) if the Association or Parent should fail to
maintain Employee's base compensation in effect as of the date of the Change in
Control and the existing employee benefits plans, including material fringe
benefit, stock option and retirement plans; (iv) if Employee would be assigned
duties and responsibilities other than those normally associated with his
position as referenced at Section 1, herein; or (v) if Employee's
responsibilities or authority have in any way been materially diminished or
reduced.
6
(c) In the event any dispute shall arise between the Employee and the
Association as to the terms or interpretation of this Agreement, including this
Section 12, whether instituted by formal legal proceedings or otherwise,
including any action taken by Employee to enforce the terms of this Section 12
or in defending against any action taken by the Association or Parent, the
Association or Parent shall reimburse Employee for all costs and expenses,
including reasonable attorneys' fees, arising from such dispute, proceedings or
actions following issuance of a legal judgement by a court of competent
jurisdiction finding in favor of the Employee or the settlement of the dispute
by the parties. Such settlement to be approved by the Board of the Association
or the Parent may include a provision for the reimbursement by the Association
or Parent to the Employee for all costs and expenses, including reasonable
attorneys' fees, arising from such dispute, proceedings or actions, or the Board
of the Association or the Parent shall authorize such reimbursement of such
costs and expenses by separate action upon a written action and determination of
the Board that payment of such costs and expenses is not detrimental to the
Association or the Parent. Such reimbursement shall be paid within ten (10) days
of Employee furnishing to the Association or Parent evidence, which may be in
the form, among other things, of a canceled check or receipt, of any costs or
expenses incurred by Employee.
13. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Association or Parent which shall
acquire, directly or indirectly, by merger, consolidation, purchase or
otherwise, all or substantially all of the assets or stock of the Association or
Parent.
(b) Since the Association is contracting for the unique and personal
skills of the Employee, the Employee shall be precluded from assigning or
delegating his rights or duties hereunder without first obtaining the written
consent of the Association.
14. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
15. Applicable Law. This agreement shall be governed in all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Georgia, the extent that Federal law shall be deemed to
apply.
16. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
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17. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT ("Agreement") entered into
this 2nd day of December 1996 ("Effective Date"), by and between Xxxxxxx County
Federal Savings and Loan Association (the "Savings Association") and Xxxxxxx X.
Xxxxxx (the "Employee").
WHEREAS, the Employee is currently employed by the Savings Association
as Senior Vice President and is experienced in all phases of the financial
services industry and the business of the Savings Association; and
WHEREAS, the parties desire by this writing to set forth the rights and
responsibilities of the Savings Association and Employee if the Savings
Association should undergo a change in control (as defined hereinafter in the
Agreement) after the Effective Date.
NOW, THEREFORE, it is AGREED as follows:
1. Employment. The Employee is employed in the capacity as the Senior
Vice President of the Savings Association. The Employee shall render such
administrative and management services to the Savings Association and CCF
Holding Company ("Parent") as are currently rendered and as are customarily
performed by persons situated in a similar executive capacity. The Employee's
other duties shall be such as the President or the Board of Directors for the
Savings Association (the "Board of Directors" or "Board") may from time to time
reasonably direct, including normal duties as an officer of the Savings
Association and the Parent.
2. Term of Agreement. The term of this Agreement shall be for the
period commencing on the Effective Date and ending twenty-four (24) months
thereafter ("Term"). Additionally, on, or before, each annual anniversary date
from the Effective Date, the Term of this Agreement may be extended for up to an
additional one year period beyond the then effective expiration date upon a
determination and resolution of the Board of Directors that the performance of
the Employee has met the requirements and standards of the Board, and that the
Term of such Agreement shall be extended.
3. Termination of Employment in Connection with or Subsequent to
a Change in Control.
(a) Notwithstanding any provision herein to the contrary, in the event
of the involuntary termination of Employee's employment under this Agreement,
absent Just Cause, in connection with, or within twenty-four (24) months after,
any Change in Control of the Savings Association or Parent, Employee shall be
paid an amount equal to 100% of the taxable compensation paid to Employee by the
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Savings Association for the twelve month period prior to the date of termination
of employment (whether said amounts were received or deferred by the Employee)
and the costs associated with maintaining coverage under the Savings
Association's medical and dental insurance reimbursement plans similar to that
in effect on the date of termination of employment for a period of one year
thereafter. Said sum shall be paid, at the option of Employee, either in one (1)
lump sum within thirty (30) days of such termination discounted to the present
value of such payment using as the discount rate the "prime rate" as published
in the Wall Street Journal Eastern Edition as of the date of such payment minus
100 basis points, or in periodic payments over the next 12 months, and such
payments shall be in lieu of any other future payments which the Employee would
be otherwise entitled to receive. Notwithstanding the forgoing, all sums payable
hereunder shall be reduced in such manner and to such extent so that no such
payments made hereunder when aggregated with all other payments to be made to
the Employee by the Savings Association or the Parent shall be deemed an "excess
parachute payment" in accordance with Section 280G of the Internal Revenue Codes
of 1986, as amended (the "Code") and be subject to the excise tax provided at
Section 4999(a) of the Code. The term "Change in Control" shall mean: (i) the
execution of an agreement for the sale of all, or a material portion, of the
assets of the Savings Association or the Parent; (ii) the execution of an
agreement for a merger or recapitalization of the Savings Association or the
Parent or any merger or recapitalization whereby the Savings Association or the
Parent is not the surviving entity; (iii) a change in control of the Savings
Association or the Parent, as otherwise defined or determined by the Office of
Thrift Supervision or regulations promulgated by it; or (iv) the acquisition,
directly or indirectly, of the beneficial ownership (within the meaning of that
term as it is used in Section 13(d) of the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder) of twenty-five percent (25%)
or more of the outstanding voting securities of the Savings Association or the
Parent by any person, trust, entity or group. The term "person" means an
individual other than the Employee, or a corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or any other form of entity not specifically listed herein.
(b) Notwithstanding any other provision of this Agreement to the
contrary except as provided at Sections 4(b), 4(c), 4(d), 4(e) and 5, Employee
may voluntarily terminate his employment under this Agreement within twenty-four
months following a Change in Control of the Savings Association or Parent, and
Employee shall thereupon be entitled to receive the payment and benefits
described in Section 3(a) of this Agreement, upon the occurrence, or within
ninety (90) days thereafter, of any of the following events, which have not been
consented to in advance by the Employee in writing: (i) if Employee would be
required to move his personal residence or perform his principal executive
functions more than thirty-five
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(35) miles from the Employee's primary office as of the signing of this
Agreement; (ii) if in the organizational structure of the Savings Association or
Parent, Employee would be required to report to a person or persons other than
the EVP and chief admin. officer; (iii) if the Savings Association or Parent
should fail to maintain the Employee's base compensation in effect as of the
date of the Change in Control and existing employee benefits plans, including
material fringe benefit, stock option and retirement plans, except to the extent
that such reduction in benefit programs is part of an overall adjustment in
benefits for all employees of the Savings Association or Parent and does not
disproportionately adversely impact the Employee; (iv) if Employee would be
assigned duties and responsibilities other than those normally associated with
his position as referenced at Section 1, herein; or (v) if Employee's
responsibilities or authority have in any way been materially diminished or
reduced.
4. Other Changes in Employment Status.
(a) Except as provided for at Section 3, herein, the Board of Directors
may terminate the Employee's employment at any time with or without Just Cause
within its sole discretion. This Agreement shall not be deemed to give Employee
any right to be retained in the employment or service of the Bank, or to
interfere with the right of the Bank to terminate the employment of the Employee
at any time. The Employee shall have no right to receive compensation or other
benefits for any period after termination for Just Cause. Termination for "Just
Cause" shall include termination because of the Employee's personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of the
Agreement.
(b) If the Employee is removed and/or permanently prohibited from
participating in the conduct of the Savings Association's affairs by an order
issued under Sections 8(e)(4) or 8(g)(1) of the Federal Deposit Insurance Act
("FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all obligations of the Savings
Association under this Agreement shall terminate, as of the effective date of
the order, but the vested rights of the parties shall not be affected.
(c) If the Savings Association is in default (as defined in Section
3(x)(1) of FDIA) all obligations under this Agreement shall terminate as of the
date of default, but this paragraph shall not affect any vested rights of the
contracting parties.
(d) All obligations under this Agreement shall be terminated, except to
the extent determined that continuation of this Agreement is necessary for the
continued operation of the Savings Association: (i) by the Director of the
Office of Thrift
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Supervision ("Director of OTS"), or his or her designee, at the time that the
Federal Deposit Insurance Corporation ("FDIC") or the Resolution Trust
Corporation enters into an agreement to provide assistance to or on behalf of
the Savings Association under the authority contained in Section 13(c) of FDIA;
or (ii) by the Director of the OTS, or his or her designee, at the time that the
Director of the OTS, or his or her designee approves a supervisory merger to
resolve problems related to operation of the Savings Association or when the
Savings Association is determined by the Director of the OTS to be in an unsafe
or unsound condition. Any rights of the parties that have already vested,
however, shall not be affected by such action.
(e) Notwithstanding anything herein to the contrary, any payments made
to the Employee pursuant to the Agreement, or otherwise, shall be subject to and
conditioned upon compliance with 12 USC ss.1828(k) and any regulations
promulgated thereunder.
5. Suspension of Employment . If the Employee is suspended and/or
temporarily prohibited from participating in the conduct of the Savings
Association's affairs by a notice served under Section 8(e)(3) or (g)(1) of the
FDIA (12 U.S.C. 1818(e)(3) and (g)(1)), the Savings Association's obligations
under the Agreement shall be suspended as of the date of service, unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Savings Association may within its discretion (i) pay the Employee all or part
of the compensation withheld while its contract obligations were suspended and
(ii) reinstate any of its obligations which were suspended.
6. Successors and Assigns.
(a) This Agreement shall inure to the benefit of and be binding upon
any corporate or other successor of the Savings Association which shall acquire,
directly or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Savings Association.
(b) The Employee shall be precluded from assigning or delegating his
rights or duties hereunder without first obtaining the written consent of the
Savings Association.
7. Amendments. No amendments or additions to this Agreement shall be
binding upon the parties hereto unless made in writing and signed by both
parties, except as herein otherwise specifically provided.
8. Applicable Law. This agreement shall be governed by all respects
whether as to validity, construction, capacity, performance or otherwise, by the
laws of the State of Georgia, except to the extent that Federal law shall be
deemed to apply.
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9. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
10. Arbitration. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the rules then in effect of the district office of the American
Arbitration Association ("AAA") nearest to the home office of the Savings
Association, and judgment upon the award rendered may be entered in any court
having jurisdiction thereof, except to the extend that the parties may otherwise
reach a mutual settlement of such issue. The Savings Association shall reimburse
Employee for all reasonable costs and expenses, including reasonable attorneys'
fees, arising from such dispute, proceedings or actions, following the delivery
of the decision of the arbitrator finding in favor of the Employee. Further, the
settlement of the dispute to be approved by the Board of the Savings Association
or the Parent may include a provision for the reimbursement by the Savings
Association or Parent to the Employee for all reasonable costs and expenses,
including reasonable attorneys' fees, arising from such dispute, proceedings or
actions, or the Board of the Savings Association or the Parent may authorize
such reimbursement of such reasonable costs and expenses by separate action upon
a written action and determination of the Board following settlement of the
dispute.
11. Entire Agreement. This Agreement together with any understanding or
modifications thereof as agreed to in writing by the parties, shall constitute
the entire agreement between the parties hereto.
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