EXHIBIT 10.2
EMPLOYMENT AGREEMENT BETWEEN
XXXX X. XXXXX AND FLAG FINANCIAL CORPORATION
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EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 1st day of April, 1998 (the "Effective
Date"), between FLAG Financial Corporation, a Georgia corporation (the
"Employer"), and XXXX X. XXXXX, a resident of the State of Georgia (the
"Employee").
RECITALS:
The Employer desires to employ the Employee as the Chairman of the
Board of Directors of the Employer and as Chairman, President and Chief
Executive Officer of First Federal Savings Bank of LaGrange and the Employee
desires to accept such employment.
In consideration of the above premises and the mutual agreements
hereinafter set forth, the parties hereby agree as follows:
1. Definitions.
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Whenever used in this Agreement, the following terms and their variant
forms shall have the meaning set forth below:
1.1 "Agreement" shall mean this Agreement and any exhibits incorporated
herein together with any amendments hereto made in the manner described in this
Agreement.
1.2 "Affiliate" shall mean any business entity which controls the
Employer, is controlled by or is under common control with the Employer.
1.3 "Area" shall mean the geographic area within the boundaries of Crisp,
Troup, Dooly, Macon and Telfair Counties, Georgia. It is the express intent of
the parties that the Area as defined herein is the area where the Employee
performs or performed services on behalf of the Employer under this Agreement as
of, or within a reasonable time prior to, the termination of the Employee's
employment hereunder.
1.4 "Average Monthly Compensation" shall mean the quotient determined (a)
by dividing the sum of the Employee's then current Base Salary (as defined
below) and most recently paid Incentive Compensation (as defined below) (b) by
twelve.
1.5 "Bank" shall mean, collectively, First Federal Savings Bank of
LaGrange and Citizens Bank, or their successors.
1.6 "Business of the Employer" shall mean the business conducted by the
Employer, which is the business of banking, including the solicitation of time
and demand deposits and the making of residential, consumer, commercial and
corporate loans.
1.7. "Cause" shall mean:
1.7.1With respect to termination by the Employer:
(a) A material breach of the terms of this Agreement by the
Employee, including, without limitation, failure by the Employee to
perform the Employees' duties and responsibilities in the manner and to
the extent required under this Agreement, which breach remains uncured
after the expiration of thirty (30) days following the delivery of
written notice of such breach to the Employee by the Employer;
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(b) Conduct by the Employee that (i) constitutes fraud,
dishonesty, gross malfeasance of duty or conduct grossly inappropriate
to the Employee's office and (ii) is demonstrably likely to lead to
material injury to the Employer or the Bank or resulted or was intended
to result in direct or indirect gain to or personal enrichment of the
Employee; provided, however, that such conduct shall not constitute
"Cause" unless there shall have been delivered to the Employee a
written notice setting forth with specificity the reasons that the
Employer believes the Employee's conduct meets the standard set forth
in this Section 1.7.1(b), the Employee shall have been provided with an
opportunity to be heard in person by the Board of Directors of the
Employer (with the assistance of counsel, if desired) and, in the event
of any such hearing, the decision of the Employer is evidenced by a
resolution adopted by two-thirds of the members of the Board of
Directors of the Employer after the hearing;
(c) Conduct resulting in the conviction of the Employee of a
felony; or
(d) Conduct by the Employee that results in the permanent
removal from the Employee's position as an officer or employee of the
Employer pursuant to a written order by any regulatory agency with
authority or jurisdiction over the Employer.
1.7.2With respect to termination by the Employee:
(a) a material diminution in the powers, responsibilities,
duties or total compensation of the Employee hereunder by the Employer,
which condition remains uncured after the expiration of thirty (30)
days following the delivery of written notice of such condition to the
Employer by the Employee;
(b) the failure of the Board of Directors of the Employer to
elect Employee as Chairman of the Board of Directors of the Employer
and as President and Chief Executive Officer of First Federal Savings
Bank of LaGrange;
(c) a material breach of the terms of this Agreement by the
Employer, which breach remains uncured after the expiration of thirty
(30) days following the delivery of written notice of such breach to
the Employer by the Employee; or
(d) a material diminution in the powers, responsibilities or
duties of the Executive Committee of the Board of Directors of the
Employer, which condition remains uncured after the expiration of
thirty (30) days following the delivery of written notice of such
condition to the Employer by the Employee.
1.8 "Employer Information" means Confidential Information and Trade
Secrets.
1.9 "Confidential Information" means data and information relating to the
business of the Employer (which does not rise to the status of a Trade Secret)
which is or has been disclosed to the Employee or of which the Employee became
aware as a consequence of or through the Employee's relationship to the Employer
and which has value to the Employer and is not generally known to its
competitors. Without limiting the foregoing, Confidential Information shall
include:
(a) all items of information that could be classified as a
trade secret pursuant to law;
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(b) The names, addresses and banking requirements of the
customers of the Bank and the nature and amount of business done with
such customers;
(c) The names and addresses of employees and other business
contacts of Bank;
(d) The particular names, methods and procedures utilized
by the Employer and the Bank in the conduct and advertising of their
business;
(e) Application, operating system, communication and other
computer software and derivatives thereof, including, without
limitation, sources and object codes, flow charts, coding sheets,
routines, subrouting and related documentation and manuals of the
Employer and the Bank; and
(f) Marketing techniques, purchasing information, pricing
policies, loan policies, quoting procedures, financial information,
customer data and other materials or information relating to Bank's
manner of doing business.
Confidential Information shall not include any data or information that has been
voluntarily disclosed to the public by the Employer (except where such public
disclosure has been made by the Employee without authorization) or that has been
independently developed and disclosed by others, or that otherwise enters the
public domain through lawful means.
1.10 "Change in Control" means any one of the following events occurring
after the Effective Date:
(a) the acquisition by any person or persons acting in concert
of the then outstanding voting securities of the Employer, if, after
the transaction, the acquiring person (or persons) owns, controls or
holds with power to vote twenty-five percent (25%) or more of any class
of voting securities of the Employer or such other transaction as may
be described under 12 C.F.R. Section 225.41(b)(1) or any successor
thereto;
(b) within any twelve-month period (beginning on or after the
Effective Date) the persons who were directors of the Employer
immediately before the beginning of such twelve-month period (the
"Incumbent Directors") shall cease to constitute at least a majority of
such board of directors; provided that any director who was not a
director as of the Effective Date shall be deemed to be an Incumbent
Director if that director was elected to such board of directors by, or
on the recommendation of or with the approval of, at least two-thirds
of the directors who then qualified as Incumbent Directors; and
provided further that no director whose initial assumption of office is
in connection with an actual or threatened election contest (as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Securities Exchange Act of 1934) relating to the election of directors
shall be deemed to be an Incumbent Director;
(c) the approval by the stockholders of the Employer of a
reorganization, merger or consolidation, with respect to which persons
who were the stockholders of the Employer immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter,
own more than fifty percent (50%) of the combined voting power entitled
to vote in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities; or
(d) the sale, transfer or assignment of all or substantially
all of the assets of the Employer and its subsidiaries to any third
party.
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1.11 "Initial Term" shall mean that period of time commencing on the
Effective Date and running until the day immediately preceding the third
anniversary of the Effective Date.
1.12 "Permanent Disability" shall mean a condition for which benefits
would be payable under any long-term disability coverage (without regard to the
application of any elimination period requirement) then provided to the Employee
by the Employer or, if no such coverage is then being provided, the inability of
the Employee to perform the material aspects of the Employee's duties under this
Agreement for a period of at least 180 consecutive days as certified by a
physician chosen by the Employee and reasonably acceptable to the Employer.
1.13. "Term" shall mean the term of this Agreement and shall consist of
the Initial Term; provided, however, that the Initial Term shall automatically
renew each day after the Effective Date so that the Term remains a three-year
term until either party provides written notice to the other of the intent that
the automatic renewals shall cease, in which case, the Term shall expire on the
third anniversary of the date of the written notice so provided.
1.14 "Trade Secrets" means information including, but not limited to,
technical or nontechnical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data, financial
plans, product plans or lists of actual or potential customers or suppliers
which (a) derives economic value, actual or potential, from not being generally
known to, and not being readily ascertainable by proper means by, other persons
who can obtain economic value from its disclosure or use; and (b) is the subject
of efforts that are reasonable under the circumstances to maintain its secrecy.
2. Duties.
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2.1 The Employee is employed initially as the Chairman of the Board of
Directors of the Employer and, subject to the direction of the Board of
Directors of the Employer or its designee, consistent with this Agreement and
the designation of Employee as Chairman of the Board of Directors of the
Employer, shall perform and discharge well and faithfully the duties which may
be assigned to the Employee from time to time by the Employer in connection with
the conduct of its business. The duties and responsibilities of the Employee are
set forth on Exhibit A attached hereto.
2.2 In addition to the duties and responsibilities specifically assigned
to the Employee pursuant to Section 2.1 hereof, the Employee shall: (a) devote
substantially all of the Employee's time, energy and skill during regular
business hours to the performance of the duties of the Employee's employment
(reasonable vacations and reasonable absences due to illness excepted) and
faithfully and industriously perform such duties; (b) diligently follow and
implement all management policies and decisions communicated to the Employee by
the Board of Directors of the Employer which are consistent with this Agreement
and the designation of Employee as Chairman of the Board of Directors of the
Employer; and (c) timely prepare and forward to the Board of Directors of the
Employer all reports and accounting as may be requested of the Employee.
2.3 The Employee shall devote the Employee's entire business time,
attention and energies to the Business of the Employer and shall not during the
term of this Agreement be engaged (whether or not during normal business hours)
in any other business or professional activity, whether or not such activity is
pursued for gain, profit or other pecuniary advantage; but this shall not be
construed as preventing the Employee from (a) investing the Employee's personal
assets in businesses which (subject to clause (b) below) are not in competition
with the Business of the Employer and which will not require any services on the
part of the Employee in their operation or affairs and in which the Employee's
participation is solely that of an investor, (b) purchasing securities or other
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interests in any entity provided that such purchase shall not result in the
Employee's collectively owning beneficially at any time five percent (5%) or
more of the equity securities of any business in competition with the Business
of the Employer and (c) participating in civic and professional affairs and
organizations and conferences, preparing or publishing papers or books or
teaching so long as the Board approves of such activities prior to the
Employee's engaging in them. Notwithstanding anything to the contrary in the
preceding provisions of this Section 2.3, the Employee may continue to serve on
any board of directors that the Employee serves upon as of the Effective Date.
3. Term and Termination.
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3.1 Term.This Agreement shall remain in effect for the Term or until a
termination of this Agreement prior to the expiration of the Term in accordance
with the remaining provisions of this Section.
3.2 Termination. During the Term, the employment of the Employee under
this Agreement may be terminated only as follows:
3.2.1 By the Employer:
(a) For Cause, following approval of such action by
at least 75% of the membership of the Board of Directors of
the Employer and only after providing Employee with at least
thirty (30) days' written notice, in which event the Employer
shall have no further obligation to the Employee except for
the payment of any amounts payable as of the effective date of
termination; or
(b) Without Cause at any time, provided that the
Employer shall give the Employee sixty (60) days' prior
written notice of its intent to terminate, in which event the
Employer shall be required to meet its obligations to the
Employee under Section 3.3 below.
3.2.2 By the Employee:
(a) For Cause, with no prior notice except as
provided in Section 1.7.2, in which event the Employer shall
be required to meet its obligations to the Employee under
Section 3.3 below; or
(b) Without Cause, provided that the Employee shall
give the Employer sixty (60) days' prior written notice of the
Employee's intent to terminate, in which event the Employer
shall have no further obligation to the Employee except for
payment of any amounts payable as of the effective date of the
termination.
3.2.3 By the Employee within the period commencing three (3)
months prior to and ending twelve (12) months after a Change in Control
of the Employer (the "Election Period"), provided that the Employee
shall give thirty (30) days written notice prior to the end of the
Election Period to the Employer of the Employee's intention to
terminate this Agreement, in which event the Employer shall be required
to meet its obligations to the Employee under Section 3.3 below.
3.2.4 At any time upon mutual, written agreement of the
parties, in which event the Employer shall have no further obligation
to the Employee except for the payment of any amounts payable as of the
effective date of the termination.
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3.2.5 Notwithstanding anything in this Agreement to the
contrary, the Term shall expire automatically upon the Employee's death
or Permanent Disability, in which event the Employer shall have no
further obligation to the Employee except for the payment of any
amounts payable as of the effective date of termination and, if the
reason for termination is the Employee's Permanent Disability, the
Employer shall pay to the Employee as liquidated damages an amount
equal to Average Monthly Compensation for each full month following
such termination until the earlier of the month prior to the month for
which the Employee's long-term disability benefits become payable or
six full months commencing with the month following the month in which
the date of termination occurs.
3.3 Termination Payments. In the event Employee's employment is terminated
under this Agreement prior to the expiration of the Term pursuant Section
3.2.1(b), Section 3.2.2(a) or Section 3.2.3, the Employer shall pay to the
Employee as severance pay and liquidated damages a lump sum amount equal to the
product of (a) Average Monthly Compensation multiplied by (b) the number of
months (including partial months) from the effective date of the termination
through the then unexpired portion of the Term or, if greater, twelve. In
addition, from the effective date of the termination through the then unexpired
portion of the Term (or, if greater, for a period of twelve months following the
effective date of the termination (the "Severance Period"), the Employer shall
continue to provide the Employee the benefits described in Section 4.6 and
Section 4.8 and shall pay an amount equal to what would be the Employee's cost
of COBRA health continuation coverage for the Employee and eligible dependents
for the greater of the Severance Period or the period during which the Employee
and those eligible dependents are entitled to COBRA health continuation coverage
from the Employer.
Notwithstanding any other provision of this Agreement to the contrary, if
the aggregate of the payments provided for in this Agreement and the other
payments and benefits which the Employee has the right to receive from the
Employer (the "Total Payments") would constitute a "parachute payment," as
defined in Section 280G(b)(2) of the Internal Revenue Code, as amended (the
"Code"), the Employee shall receive the Total Payments unless the (a) after-tax
amount that would be retained by the Employee (after taking into account all
federal, state and local income taxes payable by the Employee and the amount of
any excise taxes payable by the Employee under Section 4999 of the Code that
would be payable by the Employee (the "Excise Taxes")) if the Employee were to
receive the Total Payments has a lesser aggregate value than (b) the after-tax
amount that would be retained by the Employee (after taking into account all
federal, state and local income taxes payable by the Employee) if the Employee
were to receive the Total Payments reduced to the largest amount as would result
in no portion of the Total Payments being subject to Excise Taxes (the "Reduced
Payments"), in which case the Employee shall be entitled only to the Reduced
Payments. If the Employee is to receive the Reduced Payments, the Employee shall
be entitled to determine which of the Total Payments, and the relative portions
of each, are to be reduced.
4. Compensation.
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The Employee shall receive the following salary and benefits during the
Term:
4.1 Base Salary. The Employee shall be compensated at a base rate of One
Hundred Seventy Five Thousand Dollars ($175,000) per year ("Base Salary"). The
Employee's salary shall be reviewed by the Board of Directors of the Employer
annually, and the Employee shall be entitled to receive annually an increase in
such amount, if any, as may be determined by the Board of Directors of the
Employer based upon the performance of the Bank and its compliance with
regulatory standards. Such salary shall be payable in accordance with the
Employer's normal payroll practices.
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4.2 Incentive Compensation. The Employee shall be entitled to participate
in such bonus, incentive and other executive compensation programs as are made
available to senior management of the Employer and Bank from time to time (the
"Incentive Compensation").
4.3 Stock Options. The Employer shall grant to the Employee stock options
commensurate with the Employee's position taking into account options held by
the Employee as of the Effective Date. Any such options shall be reflected by a
separate written award.
4.4 Benefits. The Employee shall be entitled to such benefits as may be
available from time to time for senior executives of the Employer and Bank
similarly situated to the Employee. All such benefits shall be awarded and
administered in accordance with the Employer's standard policies and practices.
Such benefits may include, by way of example only, profit sharing plans,
retirement or investment funds, dental, health and life insurance benefits and
such other benefits as the Employer deems appropriate.
4.5 Disability Insurance. The Employer shall provide the Employee with
amounts, as additional compensation, as and when necessary, to allow the
Employee to pay the premiums that become due under the personal disability
insurance policy currently owned by the Employee.
4.6 Automobile. The Employer shall provide the Employee with an automobile
comparable to the automobile provided to the Employee by FLAG Financial
Corporation immediately prior to the Effective Date, with such automobile to be
used by the Employee for business and personal purposes. The automobile shall be
replaced with a new, comparable automobile no less frequently than every
twenty-four (24) months. The Employer will pay expenses associated with the
operation and maintenance of the automobile, including taxes, insurance and
repairs.
4.7 Business Expenses. The Employer shall reimburse the Employee for
reasonable business (including travel) expenses incurred by the Employee in
performance of the Employee's duties hereunder; provided, however, that the
Employee shall, as a condition of reimbursement, submit verification of the
nature and amount of such expenses in accordance with reimbursement policies
from time to time adopted by the Employer and in sufficient detail to comply
with rules and regulations promulgated by the Internal Revenue Service.
4.8 Memberships. The Employer shall reimburse the Employee for the annual
dues associated with membership in two country or eating clubs selected by the
Employee; provided, however, that the aggregate annual dues for such memberships
shall not exceed five percent (5%) of the Employee's Base Salary then in effect,
and for memberships in such professional associations which are commensurate
with the Employee's position; provided, however, that the Employee shall, as a
condition of reimbursement, submit verification of the nature and amount of such
expenses in accordance with reimbursement policies from time to time adopted by
the Employer and in sufficient detail to comply with rules and regulations
promulgated by the Internal Revenue Service.
4.9 Vacation. On a non-cumulative basis the Employee shall be entitled to
a minimum of four (4) weeks of vacation annually, during which the Employee's
compensation shall be paid in full.
4.10 Withholding. The Employer may deduct from each payment of
compensation hereunder all amounts required to be deducted and withheld in
accordance with applicable federal and state income, FICA and other withholding
requirements.
5. Employer Information.
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5.1 Ownership of Information. All Employer Information received or
developed by the Employee while employed by the Employer will remain the sole
and exclusive property of the Employer.
5.2 Obligations of the Employee. The Employee agrees (a) to hold Employer
Information in strictest confidence, and (b) not to use, duplicate, reproduce,
distribute, disclose or otherwise disseminate Employer Information or any
physical embodiments thereof and may in no event take any action causing or fail
to take any action necessary in order to prevent any Employer Information from
losing its character or ceasing to qualify as Confidential Information or a
Trade Secret. In the event that the Employee is required by law to disclose any
Employer Information, the Employee will not make such disclosure unless (and
then only to the extent that) the Employee has been advised by independent legal
counsel that such disclosure is required by law and then only after prior
written notice is given to the Employer when the Employee becomes aware that
such disclosure has been requested and is required by law. This Section 5 shall
survive for a period of twelve (12) months following termination of this
Agreement with respect to Confidential Information, and shall survive
termination of this Agreement for so long as is permitted by the then-current
Georgia Trade Secrets Act of 1990, O.C.G.A. xx.xx. 10-1-760-10-1-767, with
respect to Trade Secrets.
5.3 Delivery upon Request or Termination. Upon request by the Employer,
and in any event upon termination of the Employee's employment with the
Employer, the Employee will promptly deliver to the Employer all property
belonging to the Employer, including without limitation all Employer Information
then in the Employee's possession or control.
6. Non-Competition.
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The Employee agrees that during his employment by the Employer hereunder
and, in the event of his termination other than by the Employer without Cause
pursuant to Section 3.2.1(b), by the Employee for Cause pursuant to Section
3.2.2(a), or by the Employee pursuant to Section 3.2.3, for a period of twelve
(12) months thereafter, the Employee will not (except on behalf of or with the
prior written consent of the Employer), within the Area, either directly or
indirectly, on his own behalf or in the service or on behalf of others, as a
principal, partner, officer, director, manager, supervisor, administrator,
consultant, executive employee or in any other capacity which involves duties
and responsibilities similar to those undertaken for the Employer, engage in any
business which is the same as or essentially the same as the Business of the
Employer.
7. Non-Solicitation of Customers.
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The Employee agrees that during the Employee's employment by the Employer
hereunder and, in the event of Employee's termination other than by the Employer
without Cause pursuant to Section 3.2.1(b), by the Employee for Cause pursuant
to Section 3.2.2(a), or by the Employee pursuant to Section 3.2.3, for a period
of twelve (12) months thereafter, the Employee will not (except on behalf of or
with the prior written consent of the Employer), within the Area, on the
Employee's own behalf or in the service or on behalf of others, solicit, divert
or appropriate or attempt to solicit, divert or appropriate, directly or by
assisting others, any business from any of the Employer's or the Bank's
customers, including actively sought prospective customers, with whom the
Employee has or had material contact during the last two (2) years of the
Employee's employment, for purposes of providing products or services that are
competitive with those provided by the Employer and the Bank.
8. Non-Solicitation of Employees.
---------------------------------
The Employee agrees that during the Employee's employment by the Employer
hereunder and, in the event of the Employee's termination other than by the
Employer without Cause pursuant to Section 3.2.1(b), by the Employee for Cause
pursuant to Section 3.2.3(a), or by the Employee pursuant to Section 3.2.3, for
a period of twelve (12) months thereafter, the Employee will not, within the
Area, on the Employee's own behalf or in the service or on behalf of others,
solicit, recruit or hire away or attempt to solicit, recruit or hire away,
directly or by assisting others, any employee of the Employer or its Affiliates,
whether or not such employee is a full-time employee or a temporary employee of
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the Employer or its Affiliates and whether or not such employment is pursuant to
written agreement and whether or not such employment is for a determined period
or is at will.
9. Remedies.
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The Employee agrees that the covenants contained in Sections 5 through 8
hereof are of the essence of this Agreement; that each of the covenants is
reasonable and necessary to protect the business, interests and properties of
the Employer; and that irreparable loss and damage will be suffered by the
Employer should he breach any of the covenants. Therefore, the Employee agrees
and consents that, in addition to all the remedies provided by law or in equity,
the Employer shall be entitled to a temporary restraining order and temporary
and permanent injunctions to prevent a breach or contemplated breach of any of
the covenants. The Employer and the Employee agree that all remedies available
to the Employer or the Employee, as applicable, shall be cumulative. In
addition, in the event the Employee fails to comply with any of the covenants
contained in Section 5 hereof and such failure shall not be cured to the
reasonable satisfaction of the Employer within thirty (30) days after receipt of
written notice thereof from the Employer, the Employer shall thereupon be
relieved of liability for all obligations then remaining under Section 3.3
hereof.
10. Severability.
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The parties agree that each of the provisions included in this Agreement is
separate, distinct and severable from the other provisions of this Agreement and
that the invalidity or unenforceability of any Agreement provision shall not
affect the validity or enforceability of any other provision of this Agreement.
Further, if any provision of this Agreement is ruled invalid or unenforceable by
a court of competent jurisdiction because of a conflict between the provision
and any applicable law or public policy, the provision shall be redrawn to make
the provision consistent with and valid and enforceable under the law or public
policy.
11. No Set-Off by the Employee.
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The existence of any claim, demand, action or cause of action by the
Employee against the Employer, or any Affiliate of the Employer, whether
predicated upon this Agreement or otherwise, shall not constitute a defense to
the enforcement by the Employer of any of its rights hereunder.
12. Notice.
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All notices and other communications required or permitted under this
Agreement shall be in writing and, if mailed by prepaid first-class mail or
certified mail, return receipt requested, shall be deemed to have been received
on the earlier of the date shown on the receipt or three (3) business days after
the postmarked date thereof. In addition, notices hereunder may be delivered by
hand, facsimile transmission or overnight courier, in which event the notice
shall be deemed effective when delivered or transmitted. All notices and other
communications under this Agreement shall be given to the parties hereto at the
following addresses:
(a) If to the Employer, to it at:
000 Xxxxx Xxxxxxxxx Xxxxxx
XX Xxx 0000
XxXxxxxx, XX 00000-0000
Attn: President
FLAG Financial Corporation
(b) If to the Employee, to the Employee at:
000 Xxxxx Xxxxx Xxxxx
XxXxxxxx, XX 00000
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13. Assignment.
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Neither party hereto may assign or delegate this Agreement or any of its
rights and obligations hereunder without the written consent of the other party
hereto; provided, however, that this Agreement shall be assumed by and shall be
binding upon any successor to the Employer.
14. Waiver.
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A waiver by the Employer of any breach of this Agreement by the Employee
shall not be effective unless in writing, and no waiver shall operate or be
construed as a waiver of the same or another breach on a subsequent occasion. a
15. Arbitration.
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Any controversy or claim arising out of or relating to this contract, or
the breach thereof, shall be settled by binding arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association. The
Employer and the Employee agree that they will seek to enforce any arbitration
award in the Superior Court of Xxxxx County. The decision of the arbitration
panel shall be final and binding upon the parties and judgment upon the award
rendered by the arbitration panel may be entered by any court having
jurisdiction. The Employer and the Employee agree to share equally the fees and
expenses associated with the arbitration proceedings.
16. Attorneys' Fees.
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With respect to arbitration of disputes and if litigation ensues between
the parties concerning the enforcement of an arbitration award, each party shall
pay its own fees, costs and expenses; provided, however, the Employer shall
advance to the Employee reasonable fees, costs and expenses incurred by the
Employee in preparing for and in initiating or defending against any proceeding
or suit brought to enforce rights or obligations set forth in this Agreement.
Such advances shall be made within thirty (30) days after receiving copies of
invoices presented by the Employee for such fees, costs and expenses. The
Employee shall have the obligation to reimburse the Employer within sixty (60)
days following the final disposition of the matter (including appeals) to the
full extent of the aggregate advances unless the panel of arbitrators or court,
as the case may be, has ruled in favor of the Employee on the merits of the
substantive issues in dispute.
17. Applicable Law.
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This Agreement shall be construed and enforced under and in accordance with
the laws of the State of Georgia. The parties agree that the Superior Court of
Xxxxx County, Georgia, shall have jurisdiction of any case or controversy
arising under or in connection with this Agreement and shall be a proper forum
in which to adjudicate such case or controversy. The parties consent to the
jurisdiction of such courts.
18. Interpretation.
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Words importing any gender includes all genders. Words importing the
singular form shall include the plural, and vice versa. The terms "herein,"
"hereunder," "hereby, "hereto, "hereof" and any similar terms refer to this
Agreement. Any captions, titles or headings preceding the text of any article,
se or subsection herein are solely for convenience of reference and shall not
constitute part of this Agreement or affect its meaning, construction or effect.
19. Entire Agreement.
---------------------
This Agreement embodies the entire and final agreement of the parties on
the subject matter stated in the Agreement. No amendment or modification of this
Agreement shall be valid or binding upon the Employer or the Employee unless
made in writing and signed by both parties. All prior understandings and
agreements relating to the subject matter of this Agreement are hereby expressly
terminated; provided, however, that this Agreement shall not alter, limit or
otherwise impair the Employee's rights [identify any applicable agreement and]
under any tax-qualified retirement plan in which the Employee is or may become a
participant.
20. Rights of Third Parties.
----------------------------
Nothing herein expressed is intended to or shall be construed to confer
upon or give to any person, firm or other entity, other than the parties hereto
and their permitted assigns, any rights or remedies under or by reason of this
Agreement.
10
21. Survival.
-------------
The obligations of the Employer pursuant to Sections 3.2.5 and 3.3 and the
obligations of the Employee pursuant to Sections 5, 6, 7, 8 and 9 shall survive
the termination of the employment of the Employee hereunder for the period
designated under each of those respective sections.
11
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement in accordance with the provisions hereof.
FLAG FINANCIAL CORPORATION
/s/ Xxxx Xxxxxx III
-------------------
Print Name: Xxxx Xxxxxx III
---------------------------
Date: 1 April 1998
ATTEST:
/s/___________________________
Date: April 1, 1998
/s/ Xxxx X. Xxxxx
-----------------
Xxxx X. Xxxxx
12
Exhibit A
Duties of the Employee
* Serve as ex-officio member of all Committees of the Board of Directors of
the Employer.
* Call and serve as chairman of meetings of the Employer's shareholders,
Board of Directors and Executive Committee.
* Establish contact, coordinate and negotiate with the Employer's potential
acquisition targets.
