EXHIBIT 10.1
EMPLOYMENT AGREEMENT
This Agreement is made by and between Atlantic Coast Federal (the
"Bank"), and Xxx X. Xxxxxx, Xx. ("Executive") and is effective as of September
1, 2006 (the "Effective Date"). References herein to the "Company" mean Atlantic
Coast Federal Corporation, which owns 100% of the common stock of the Bank. The
Company is a signatory to this Agreement for the sole purpose of guaranteeing
the Bank's performance hereunder.
WHEREAS, Executive has served as an officer of the Bank and the Bank
wishes to assure itself of the services of Executive as an officer of the Bank
for the period provided in this Agreement; and
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, and upon the other terms and conditions hereinafter provided, the
parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
Executive agrees to serve as the Senior Vice President - Chief Financial
Officer of the Company and the Bank. In that position, pursuant to direction
from the Chief Executive Officer, the Executive shall be responsible for
overseeing the financial functions of the Company and the Bank, and establishing
and implementing the financial plans and policies of the Company and the Bank,
as well as special projects assigned by the Board of Directors or the Chief
Executive Officer from time to time, including, but not limited to, projects
related to the strategic growth of the Company and the Bank and acquisition
opportunities. Executive also agrees to serve, if appointed or elected, as an
officer and director of any subsidiary or affiliate of the Bank.
2. TERM AND DUTIES.
(a) The term of this Agreement and the period of Executive's
employment hereunder will begin as of the Effective Date and continue for a
period of twelve (12) full calendar months thereafter. Commencing on the first
anniversary date of this Agreement (the "Anniversary Date"), and continuing at
each Anniversary Date thereafter, the Agreement shall renew for an additional
year such that the remaining term shall be twelve (12) full calendar months;
provided, however, that the Chief Executive Officer shall, at least sixty (60)
days before such Anniversary Date conduct a comprehensive performance evaluation
and review of the Executive for purposes of determining whether to extend this
Agreement. The Chief Executive Officer shall give the Executive notice of his
decision whether or not to renew this Agreement at least thirty (30) days and
not more than sixty (60) days prior to the Anniversary Date, and if written
notice of non-renewal is provided to the Executive within said time frame, the
term of this Agreement shall not be extended.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, reasonable vacation periods, and
reasonable leaves of absence approved by the Chief Executive Officer, Executive
shall devote substantially all his business time, attention, skill, and efforts
to the faithful performance of his duties hereunder including activities and
services related to the operation and management of the Bank; provided, however,
that, with the approval of the Board of Directors, Executive may serve, or
continue to serve, on the boards
of directors of, and hold any other offices or positions in, business, social,
religious, charitable or similar organizations which, in the Board of Directors'
judgment, will not present any conflict of interest with the Bank, or materially
affect the performance of Executive's duties pursuant to this Agreement.
Notwithstanding the preceding sentence, no approval is required for the
Executive to participate or serve in (i) outside organizations in which the
Executive is serving as of the Effective Date; (ii) religious or educational
organizations which Executive or Executive's children may attend from time to
time; or (iii) affiliates of such organizations.
3. COMPENSATION, BENEFITS AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Section 2(b). Beginning
on the Effective Date, the Bank shall pay Executive as compensation a salary of
not less than $145,000.96 per year ("Base Salary"). Such Base Salary shall be
payable biweekly, or with such other frequency as officers and employees are
generally paid. During the period of this Agreement, Executive's Base Salary
shall be reviewed at least annually. Such review shall be conducted by the Board
of Directors, and the Bank may increase, but not decrease (except a decrease
that is generally applicable to all employees) Executive's Base Salary (with any
increase in Base Salary to become "Base Salary" for purposes of this Agreement).
In addition to the Base Salary, the Bank shall provide Executive at no cost to
Executive with all such other benefits as are provided uniformly to permanent
full-time employees of the Bank. Base Salary shall include any amounts of
compensation deferred by Executive under qualified and nonqualified plans
maintained by the Bank.
(b) Executive will be entitled to participate in or receive benefits
under any employee benefit plans including, but not limited to, retirement
plans, supplemental retirement plans, pension plans, profit-sharing plans,
health-and-accident insurance plans, medical coverage or any other employee
benefit plan or arrangement made available by the Bank or the Company in the
future to its senior executives and key management employees, subject to and on
a basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Executive will be entitled to participate in any
incentive compensation and bonus plans offered by the Bank or the Company in
which Executive is eligible to participate. Nothing paid to Executive under any
such plan or arrangement will be deemed to be in lieu of other compensation to
which Executive is entitled under this Agreement.
(c) In addition to the Base Salary, the Bank shall pay or reimburse
Executive for all reasonable travel and other reasonable expenses incurred by
Executive performing his obligations under this Agreement and may provide such
additional compensation in such form and such amounts as the Chief Executive
Officer may from time to time determine. The Bank shall reimburse Executive for
his ordinary and necessary business expenses, including, without limitation,
fees for memberships in such clubs and organizations as Executive and the Board
of Directors shall mutually agree are necessary and appropriate for business
purposes, and travel and entertainment expenses, incurred in connection with the
performance of his duties under this Agreement.
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4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during Executive's term of employment under this Agreement, the
provisions of this Section 4 shall apply. As used in this Agreement, an "Event
of Termination" shall mean and include any of the following:
(i) the termination by the Bank of Executive's full-time
employment hereunder for any reason other than
termination governed by Section 5 (Termination for
Cause) or termination governed by Section 6 (Termination
Due to Death); or
(ii) Executive's resignation from the Bank's employ for any
of the following reasons:
(A) the failure to appoint or reappoint Executive to
the position set forth under Section 1;
(B) a material change in Executive's functions,
duties, or responsibilities with the Bank, which
change would cause Executive's position to
become one of lesser responsibility, importance,
or scope from the position and attributes
thereof described in Section 1;
(C) a relocation of Executive's principal place of
employment by more than thirty (30) miles from
its location at the later of the Effective Date
or any subsequent Anniversary Date of this
Agreement;
(D) a material reduction in the benefits and
perquisites to Executive from those being
provided as of the Effective Date of this
Agreement, other than an employee-wide reduction
in pay or benefits;
(E) a liquidation or dissolution of the Company or
the Bank; or
(F) a material breach of this Agreement by the Bank.
Upon the occurrence of any event described in clauses
(A), (B), (C), (D), (E) or (F), above, Executive shall
have the right to elect to terminate his employment
under this Agreement by resignation upon not less than
thirty (30) days prior written Notice of Termination, as
defined in Section 9(b), given within ninety (90) days
after the event giving rise to said right to elect.
Notwithstanding the preceding sentence, in the event of
a continuing breach of this Agreement by the Bank,
Executive, after giving due notice within the prescribed
time frame of an initial event specified above, shall
not waive any of his rights under this Agreement and
this Section solely by virtue of the fact that Executive
has submitted his resignation, provided Executive has
remained in the employment of the
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Bank and is engaged in good faith discussions to resolve
any occurrence of an event described in clauses (A),
(B), (C), (D) or (F) above.
(iii) (A) Executive's involuntary termination by the Bank or
the Company (or any successor thereto) on the effective
date of, or at any time following, a Change in Control,
or (B) Executive's resignation from the employment with
the Bank or the Company (or any successor thereto)
following a Change in Control as a result of any event
described in Section 4(a)(ii)(A), (B), (C), (D), or (F)
above. For these purposes, a "Change in Control" of
shall mean a change in control of the Bank or the
Company of a nature that: (i) would be required to be
reported in response to Item 5.01 of the current report
on Form 8-K, as in effect on the date hereof, pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
0000 (xxx "Xxxxxxxx Xxx"); or (ii) without limitation
such a Change in Control shall be deemed to have
occurred at such time as (a) any "person" (as the term
is used in Sections 13(d) and 14(d) of the Exchange Act)
is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing 25% or more of
the combined voting power of Company's outstanding
securities except for any securities purchased by the
Company's employee stock ownership plan or trust; or (b)
individuals who constitute the Board of Directors of the
Company on the date hereof (the "Incumbent Board") cease
for any reason to constitute at least a majority
thereof, PROVIDED that any person becoming a director
subsequent to the date hereof whose election was
approved by a vote of at least a majority of the
directors of the Board, shall be, for purposes of this
clause (b), considered as though he or she were a member
of the Incumbent Board; or (c) a plan of reorganization,
merger, consolidation, sale of all or substantially all
the assets of the Bank or the Company or similar
transaction in which the Bank or Company is not the
surviving institution occurs, excluding any transaction
in which Atlantic Coast Federal MHC, the majority
stockholder of the Company, undergoes a full stock
conversion.
(b) Upon the occurrence of an Event of Termination under Sections
4(a) (i) or (ii), on the Date of Termination, as defined in Section 9(b), the
Bank shall be obligated to pay Executive, or, in the event of his subsequent
death, his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, an amount equal to the sum of: (i)
his earned but unpaid salary as of the date of his termination of employment
with the Bank; (ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation plans
and programs maintained for the benefit of the Bank or Company's officers and
employees; (iii) the remaining payments that Executive would have earned, in
accordance with Sections 3(a) and 3(b), if he had continued his employment with
the Bank for twelve (12) full months following such Event of Termination, and
had earned the maximum bonus or incentive award in each calendar year that ends
during such term; and (iv) the annual contributions or payments that would have
been made on Executive's behalf to any employee benefit plans of the Bank as if
Executive had continued his employment with the Bank for twelve (12) full months
following such Event of Termination, based on contributions or
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payments made (on an annualized basis) at the Date of Termination. Any payments
hereunder shall be made in a lump sum within thirty (30) days after the Date of
Termination, or in the event that Section 409A of the Internal Revenue Code of
1986, as amended ("Code") applies, no later than the first day of the seventh
month following the Date of Termination. Such payments shall not be reduced in
the event Executive obtains other employment following termination of
employment.
(c) Upon the occurrence of an Event of Termination under Section
4(a)(iii), on the Date of Termination, as defined in Section 9(b), the Bank
shall be obligated to pay Executive, or, in the event of his subsequent death,
his beneficiary or beneficiaries, or his estate, as the case may be, as
severance pay or liquidated damages, or both, an amount equal to the sum of: (i)
his earned but unpaid salary as of the date of his termination of employment
with the Bank; (ii) the benefits, if any, to which he is entitled as a former
employee under the employee benefit plans and programs and compensation plans
and programs maintained for the benefit of the Bank or Company's officers and
employees; (iii) the remaining payments that Executive would have earned, in
accordance with Sections 3(a) and 3(b), if he had continued his employment with
the Bank for an [EIGHTEEN (18) MONTH] period following such Event of
Termination, and had earned the maximum bonus or incentive award in each
calendar year that ends during such term; and (iv) the annual contributions or
payments that would have been made on Executive's behalf to any employee benefit
plans of the Bank or the Company as if Executive had continued his employment
with the Bank for an [EIGHTEEN (18) MONTH] period following such Event of
Termination, based on contributions or payments made (on an annualized basis) at
the Date of Termination. Any payments hereunder shall be made in a lump sum
within thirty (30) days after the Date of Termination, or in the event that
Section 409A of the Code applies, no later than the first day of the seventh
month following the Date of Termination. Such payments shall not be reduced in
the event Executive obtains other employment following termination of
employment.
(d) Upon the occurrence of an Event of Termination, the Bank will
cause to be continued life, medical and disability coverage substantially
identical to the coverage maintained by the Bank for Executive and his family
prior to Event of Termination for the remaining unexpired Employment Period.
Thereafter, COBRA group health care continuation coverage shall be made
available to the Executive and his spouse and dependents in accordance with
applicable law.
(e) Notwithstanding anything in this Agreement to the contrary, in
no event shall the aggregate payments or benefits to be made or afforded to
Executive under this Section constitute an "excess parachute payment" under
Section 280G of the Code or any successor thereto, and in order to avoid such a
result, Executive's benefits hereunder shall be reduced, if necessary, to an
amount, the value of which is one dollar ($1.00) less than an amount equal to
three (3) times Executive's "base amount," as determined in accordance with
Section 280G. The allocation of the reduction required hereby shall be
determined by Executive.
5. TERMINATION FOR JUST CAUSE.
(a) The term "Termination for Just Cause" shall mean termination
because of the Executive's personal dishonesty, incompetence, willful
misconduct, breach of fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law,
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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) Notwithstanding Section 5(a), neither the Company nor the Bank
may terminate Executive for Just Cause unless and until there shall have been
delivered to him a Notice of Termination, finding that in the good faith opinion
of the Board of Directors, Executive was guilty of conduct justifying
Termination for Just Cause and specifying the particulars thereof in detail.
Executive shall not have the right to receive compensation or other benefits for
any period after Termination for Just Cause. During the period beginning on the
date of the Notice of Termination for Just Cause through the Date of
Termination, any unvested stock options and related limited rights granted to
Executive under any stock option plan shall not be exercisable nor shall any
unvested awards granted to Executive under any stock benefit plan of the Bank,
the Company or any subsidiary or affiliate thereof, vest. At the Date of
Termination, any such unvested stock options and related limited rights and any
such unvested awards shall become null and void and shall not be exercisable by
or delivered to Executive at any time subsequent to such Termination for Just
Cause.
6. TERMINATION FOR DEATH.
In the event of Executive's death during the term of this Agreement, his
estate, legal representatives or named beneficiary or beneficiaries (as directed
by Executive in writing) shall be paid Executive's Base Salary, at the rate in
effect at the time of Executive's death for the remainder of the then-current
term.
7. TERMINATION UPON RETIREMENT
Termination of Executive's employment based on "Retirement" shall mean
termination of Executive's employment on or after age 55 unless extended by the
Board of Directors or in accordance with any retirement policy established by
the Bank or the Company with Executive's consent with respect to him. Upon
termination of Executive's employment based on Retirement, no amounts or
benefits shall be due Executive under this Agreement, and Executive shall be
entitled to all benefits under any retirement plan of the Bank and other plans
to which Executive is a party.
8. RESIGNATION FROM BOARDS OF DIRECTORS
In the event of termination of Executive's employment for any reason
other than upon a Change in Control, Executive shall immediately resign as a
director of the Company and the Bank, and/or as a director and/or officer of any
subsidiary or affiliate of the Company and/or the Bank.
9. NOTICE.
(a) Any notice required hereunder shall be in writing and
hand-delivered to the other party. Any termination by the Bank or by Executive
shall be communicated by Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a written
notice which shall indicate the specific termination provision
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in this Agreement relied upon and shall set forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of Executive's
employment under the provision so indicated.
(b) "Date of Termination" shall mean the date specified in the
Notice of Termination.
(c) If the party receiving a Notice of Termination desires to
dispute or contest the basis or reasons for termination, the party receiving the
Notice of Termination must notify the other party within thirty (30) days after
receiving the Notice of Termination that such a dispute exists, and shall pursue
the resolution of such dispute in good faith and with reasonable diligence.
During the pendency of any such dispute, neither the Company nor the Bank shall
be obligated to pay Executive compensation or other payments beyond the Date of
Termination.
10. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank. The Company, however, guarantees
payment and provision of all amounts and benefits due hereunder to Executive,
and if such amounts and benefits due from the Bank are not timely paid or
provided by the Bank, such amounts and benefits shall be paid or provided by the
Company.
11. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior agreement between the Bank or any predecessor of
the Bank and Executive. No provision of this Agreement shall be interpreted to
mean that Executive is subject to receiving fewer benefits than those available
to him without reference to this Agreement.
12. NO ATTACHMENT; BINDING ON SUCCESSORS.
(a) Except as required by law, no right to receive payments under
this Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall be null,
void, and of no effect.
(b) This Agreement shall be binding upon, and inure to the benefit
of, Executive and the Bank and their respective successors and assigns.
13. MODIFICATION AND WAIVER.
(a) This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(b) No term or condition of this Agreement shall be deemed to have
been waived, nor shall there be any estoppel against the enforcement of any
provision of this Agreement, except by written instrument of the party charged
with such waiver or estoppel. No such written waiver shall be deemed a
continuing waiver unless specifically stated therein, and each such waiver
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shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future as to any act other
than that specifically waived.
14. REQUIRED PROVISIONS.
(a) The Bank may terminate Executive's employment at any time, but
any termination by the Bank other than Termination for Just Cause as defined in
Section 5 hereof shall not prejudice Executive's right to compensation or other
benefits under this Agreement. Executive shall have no right to receive
compensation or other benefits for any period after Termination for Cause.
(b) If Executive is suspended from office and/or temporarily
prohibited from participating in the conduct of the Bank's affairs by a notice
served under Section 8(e)(3) [12 USC ss.1818(e)(3)] or 8(g)(1) [12 USC
ss.1818(g)(1)] of the Federal Deposit Insurance Act (the "FDI Act"), the Bank's
obligations under this Agreement shall be suspended as of the date of service,
unless stayed by appropriate proceedings. If the charges in the notice are
dismissed, the Bank may in its discretion (i) pay Executive all or part of the
compensation withheld while its contract obligations were suspended and (ii)
reinstate (in whole or in part) any of its obligations which were suspended.
(c) If Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8(e)(4) [12 USC ss.1818(e)(4)] or 8(g)(1) [12 USC ss.1818(g)(1)] of the
FDI Act, all obligations of the Bank under this Agreement shall terminate as of
the effective date of the order, but vested rights of the contracting parties
shall not be affected.
(d) If the Bank is in default as defined in Section 3(x)(1) [12 USC
ss.1813(x)(1)] of the FDI Act, all obligations of the Bank under this Agreement
shall terminate as of the date of default, but this paragraph shall not affect
any vested rights of the contracting parties.
(e) 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 Bank, (i) by the Director of the Office of Thrift
Supervision ("OTS") or his or her designee, at the time the FDIC enters into an
agreement to provide assistance to or on behalf of the Bank under the authority
contained in Section 13(c) [12 USC ss.1823(c)] of the FDI Act; or (ii) by the
Director or his or her designee at the time the Director or his or her designee
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director 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.
(f) Notwithstanding anything herein contained to the contrary, any
payments to Executive by the Company, whether pursuant to this Agreement or
otherwise, are subject to and conditioned upon their compliance with Section
18(k) of the FDI Act, 12 U.S.C. Section 1828(k), and the regulations promulgated
thereunder in 12 C.F.R. Part 359.
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15. NON-COMPETITION AND POST-TERMINATION OBLIGATIONS.
(a) All payments and benefits to Executive under this Agreement
shall be subject to Executive's compliance with paragraph (b), (c) and (d) of
this Section 15.
(b) Executive shall, upon reasonable notice, furnish such
information and assistance to the Bank as may reasonably be required by the Bank
in connection with any litigation in which it or any of its subsidiaries or
affiliates is, or may become, a party; provided, however, that Executive shall
not be required to provide information or assistance with respect to any
litigation between the Executive and the Bank or any of its subsidiaries or
affiliates.
(c) Executive recognizes and acknowledges that the knowledge of the
business activities and plans for business activities of the Bank, the Company
and affiliates thereof, as it may exist from time to time, is a valuable,
special and unique asset of the business of the Bank, the Company and affiliates
thereof. Executive will not, during or after the term of his employment,
disclose any knowledge of the past, present, planned or considered business
activities of the Bank, Company or affiliates thereof to any person, firm,
corporation, or other entity for any reason or purpose whatsoever (except for
such disclosure as may be required to be provided to the OTS, the Federal
Deposit Insurance Corporation ("FDIC"), or other regulatory agency with
jurisdiction over the Company, the Bank or Executive). Notwithstanding the
foregoing, Executive may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not solely and exclusively
derived from the business plans and activities of the Bank, and Executive may
disclose any information regarding the Bank which is otherwise publicly
available or which Executive is otherwise legally required to disclose. In the
event of a breach or threatened breach by Executive of the provisions of this
Section 15, the Bank will be entitled to an injunction restraining Executive
from disclosing, in whole or in part, his knowledge of the past, present,
planned or considered business activities of the Bank or the Company or any of
their affiliates, or from rendering any services to any person, firm,
corporation or other entity to whom such knowledge, in whole or in part, has
been disclosed or is threatened to be disclosed. Nothing herein will be
construed as prohibiting the Bank and the Company from pursuing any other
remedies available to them for such breach or threatened breach, including the
recovery of damages from Executive.
(d) Upon any termination of Executive's employment hereunder for any
reason other than (i) pursuant to Section 4(a)(iii); (ii) pursuant to Section
6(a); or (iii) any termination of Executive's employment hereunder as a result
of the expiration of Executive's employment term following a notice of
non-renewal pursuant to Section 2(a), Executive agrees not to compete with the
Bank and the Company and any of their subsidiaries for a period of one (1) year
following such termination in any city, town or county in which the Bank has an
office or has filed an application for regulatory approval to establish an
office, determined as of the effective date of such termination, except as
agreed to pursuant to a resolution duly adopted by the Board. Executive agrees
that during such period and within said cities, towns and counties, Executive
shall not work for or advise, consult or otherwise serve with, directly or
indirectly, any entity whose business materially competes with the depository,
lending or other business activities of the Bank. The parties hereto,
recognizing that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of this Section 15(d) agree that in
the event of any such breach by Executive, the Bank will be entitled, in
addition to any other
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remedies and damages available, to an injunction to restrain the violation
hereof by Executive, Executive's partners, agents, servants, employers,
employees and all persons acting for or with Executive. Executive represents and
admits that Executive's experience and capabilities are such that Executive can
obtain employment in a business engaged in other lines and/or of a different
nature than the Bank, and that the enforcement of a remedy by way of injunction
will not prevent Executive from earning a livelihood. Nothing herein will be
construed as prohibiting the Bank and the Company from pursuing any other
remedies available to them for such breach or threatened breach, including the
recovery of damages from Executive.
Executive further agrees that Executive will not, in any manner
whatsoever, during his employment with the Company and the Bank and for a period
of one (1) year following the termination of Executive's employment, either as
an individual or as a partner, stockholder, director, officer, principal,
employee, agent, consultant, or in any other relationship or capacity, with any
person, firm, corporation or other business entity, either directly or
indirectly, solicit or induce or aid in the solicitation or inducement of any
employees of the Company or the Bank to leave their employment with the Company
or the Bank. Executive further agrees that the Executive will not, in any manner
whatsoever, during Executive's employment with the Company or the Bank and for a
period of one (1) year following the termination of Executive's employment with
the Company or the Bank, either as an individual or as a partner, stockholder,
director, officer, principal, employee, agent, consultant or in any other
relationship or capacity with any person, firm, corporation or other business
entity, either directly or indirectly, solicit the business of any customers or
clients of the Company or the Bank at the time of the termination of Executive's
employment with the Company or the Bank.
16. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
17. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
18. GOVERNING LAW.
This Agreement shall be governed by the laws of the State of Georgia but
only to the extent not superseded by federal law.
19. ARBITRATION.
Any dispute or controversy arising under or in connection with this
Agreement shall be settled exclusively by binding arbitration, conducted before
a single arbitrator selected by the Bank and Executive sitting in a location
selected by the Bank and Executive within twenty-five (25) miles of Waycross,
Georgia in accordance with the rules of the American Arbitration
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Association then in effect. Judgment may be entered on the arbitrator's award in
any court having jurisdiction.
20. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by Executive pursuant to any
dispute or question of interpretation relating to this Agreement shall be paid
or reimbursed by the Bank, provided that the dispute or interpretation has been
settled by Executive and the Bank or resolved in Executive's favor.
21. INDEMNIFICATION.
(a) The Bank shall provide Executive (including his heirs, executors
and administrators) with coverage under a standard directors' and officers'
liability insurance policy at its expense, and shall indemnify Executive (and
his heirs, executors and administrators) to the fullest extent permitted under
applicable law against all expenses and liabilities reasonably incurred by him
in connection with or arising out of any action, suit or proceeding in which he
may be involved by reason of his having been a director or officer of the Bank
(whether or not he continues to be a director or officer at the time of
incurring such expenses or liabilities), such expenses and liabilities to
include, but not be limited to, judgments, court costs and attorneys' fees and
the cost of reasonable settlements (such settlements must be approved by the
Board); provided, however, the Bank shall not be required to indemnify or
reimburse Executive for legal expenses or liabilities incurred in connection
with an action, suit or proceeding arising from any illegal or fraudulent act
committed by Executive. Any such indemnification shall be made consistent with
OTS Regulations and Section 18(k) of the FDI Act, 12 U.S.C. ss.1828(k), and the
regulations issued thereunder in 12 C.F.R. Part 359.
(b) Notwithstanding the foregoing, no indemnification shall be made
unless the Bank gives the OTS at least 60 days' notice of its intention to make
such indemnification. Such notice shall state the facts on which the action
arose, the terms of any settlement, and any disposition of the action by a
court. Such notice, a copy thereof, and a certified copy of the resolution
containing the required determination by the Board shall be sent to the Regional
Director of the OTS, who shall promptly acknowledge receipt thereof. The notice
period shall run from the date of such receipt. No such indemnification shall be
made if the OTS advises the Bank in writing within such notice period, of its
objection thereto.
[Signatures on next page]
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IN WITNESS WHEREOF, the Company and the Bank have caused this Agreement
to be executed by their duly authorized representatives, and Executive has
signed this Agreement, effective as of the Effective Date. The Company has
become a party to this Agreement for the sole purpose of binding itself to the
duties and obligations set forth in Sections 10 and 21 hereof.
ATLANTIC COAST FEDERAL
September 1, 2006 By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------- -----------------------------
Date Xxxxxx X. Xxxxxxx, Xx.,
President and Chief Executive
Officer
EXECUTIVE
September 1, 2006 /s/ Xxx X. Xxxxxx, Xx.
-------------------- --------------------------------
Date Xxx X. Xxxxxx, Xx.
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