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EXHIBIT 10.7
XXXXXX FEDERAL BANK
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Employment Agreement with
Xxxxxx X. Ray
AGREEMENT entered into and effective this 3rd day of March 1997, by and
between Xxxxxx Federal Bank (the "Bank") and Xxxxxx X. Ray (the "Employee").
WHEREAS, the Employee has heretofore been employed by the Bank as its
Chief Operating Officer and Senior Vice President and is experienced in all
phases of the business of the Bank; and
WHEREAS, the Board of Directors (the "Board") of the Bank believes it
is in the best interests of the Bank to enter into this Agreement with the
Employee in order to assure continuity of management of the Bank and to
reinforce and encourage the continued attention and dedication of the Employee
to her assigned duties; and
WHEREAS, the parties desire by this writing to set forth the continuing
employment relationship of the Bank and the Employee.
NOW, THEREFORE, it is AGREED as follows:
1. Defined Terms
When used anywhere in this Agreement, the following terms shall have
the meaning set forth herein.
(a) "Change in Control" shall mean any one of the
following events: (i) the acquisition of ownership, holding or power to vote
more than 25% of the voting stock of the Bank or the Company, (ii) the
acquisition of the ability to control the election of a majority of the Bank's
or the Company's directors, (iii) the acquisition of the power to direct the
management or policies of the Bank or of the Company by any person or by persons
acting as a "group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934), or (iv) during any period of two consecutive years,
individuals (the "Continuing Directors") who at the beginning of such period
constitute the Board of Directors of the Bank or of the Company (the "Existing
Board") cease for any reason to constitute at least two-thirds thereof, provided
that any individual whose election or nomination for election as a member of the
Existing Board was approved by a vote of at least two-thirds of the Continuing
Directors then in office shall be considered a Continuing Director.
Notwithstanding the foregoing, the Company's ownership of the Bank shall not of
itself constitute a Change in Control for purposes of the Agreement. For
purposes of this paragraph
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only, the term "person" refers to an individual 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) "Company" shall mean Eagle Bancshares, Inc.
(c) "Code" shall mean the Internal Revenue Code of 1986,
as amended from time to time, and as interpreted through applicable rulings and
regulations in effect from time to time.
(d) "Code ss.280G Maximum" shall mean the product of 2.99
and the Employee's "base amount" as defined in Code ss.280G(b)(3).
(e) "Disability" shall mean a physical or mental
infirmity which impairs the Employee's ability to substantially perform her
duties under this Agreement and which results in the Employee becoming eligible
for long-term disability benefits under the Bank's long-term disability plan
(or, if the Bank has no such plan in effect, which impairs the Employee's
ability to substantially perform her duties under this Agreement for a period of
180 consecutive days).
(f) "Effective Date" shall mean the date referenced in
the opening paragraph of this Agreement.
(g) "Good Reason" shall mean any of the following events,
which has not been consented to in advance by the Employee in writing: (i) the
requirement that the Employee move her personal residence, or perform her
principal executive functions, more than 30 miles from her primary office as of
the later of the Effective Date and the most recent voluntary relocation by the
Employee; (ii) a material reduction in the Employee's base compensation under
this Agreement as the same may be increased from time to time; (iii) the failure
by the Bank or the Company to continue to provide the Employee with compensation
and benefits provided under this Agreement as the same may be increased from
time to time, or with benefits substantially similar to those provided to him
under any of the employee benefit plans in which the Employee now or hereafter
becomes a participant, or the taking of any action by the Bank or the Company
which would directly or indirectly reduce any of such benefits or deprive the
Employee of any material fringe benefit enjoyed by him under this Agreement;
(iv) the assignment to the Employee of duties and responsibilities materially
different from those normally associated with her position; (v) a failure to
reelect the Employee to the Board of Directors of the Bank or the Company, if
the Employee has served on such Board at any time during the term of the
Agreement; or (vi) a material diminution or reduction in the Employee's
responsibilities or authority (including reporting responsibilities) in
connection with her employment with the Bank.
(h) "Just Cause" shall mean, in the good faith
determination of the Bank's Board of Directors, 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
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cease-and-desist order, or material breach of any provision of this Agreement.
The Employee shall have no right to receive compensation or other benefits for
any period after termination for Just Cause. No act, or failure to act, on the
Employee's part shall be considered "willful" unless she has acted, or failed to
act, with an absence of good faith and without a reasonable belief that her
action or failure to act was in the best interest of the Bank and the Company.
(i) "Protected Period" shall mean the period that begins
upon the occurrence of a Change in Control and ends on the later of the second
annual anniversary of the Change in Control or the expiration date of this
Agreement.
(j) "Trust" shall mean a grantor trust that is designed
in accordance with Revenue Procedure 92-64 and has a trustee independent of the
Bank and the Company.
2. Employment. The Employee is employed as the Chief Operating
Officer and Senior Vice President of the Bank. The Employee shall render such
administrative and management services for the Bank as are currently rendered
and as are customarily performed by persons situated in a similar executive
capacity. The Employee shall also promote, by entertainment or otherwise, as and
to the extent permitted by law, the business of the Bank. The Employee's other
duties shall be such as the Board may from time to time reasonably direct,
including normal duties as an officer of the Bank.
3. Base Compensation. The Bank agrees to pay the Employee during
the term of this Agreement a salary at the rate of $95,000 per annum, payable in
cash not less frequently than monthly. The Board shall review, not less often
than annually, the rate of the Employee's salary, and in its sole discretion may
decide to increase her salary. The Board's review must be documented in the
Board's minutes.
4. Discretionary Bonuses. The Employee shall participate in an
equitable manner with all other senior management employees of the Bank in
discretionary bonuses that the Board may award from time to time to the Bank's
senior management employees. No other compensation provided for in this
Agreement shall be deemed a substitute for the Employee's right to participate
in such discretionary bonuses.
5. Participation in Retirement, Medical and Other Plans.
(a) The Employee shall be eligible to participate in any
of the following plans or programs that the Bank may now or in the future
maintain: group hospitalization, disability, health, dental, sick leave, life
insurance, travel and/or accident insurance, auto allowance/auto lease,
retirement, pension, and/or other present or future qualified or nonqualified
plans provided by the Bank, generally which benefits, taken as a whole, must be
at least as favorable as those in effect on the Effective Date.
(b) The Employee shall also be eligible to participate in
any fringe benefits which are or may become available to the Bank's senior
management employees, including for example:
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any stock option or incentive compensation plans, and any other benefits which
are commensurate with the responsibilities and functions to be performed by the
Employee under this Agreement. The Employee shall be reimbursed for all
reasonable out-of-pocket business expenses which she shall incur in connection
with her services under this Agreement upon substantiation of such expenses in
accordance with the policies of the Bank.
6. Term. The Bank hereby employs the Employee, and the Employee
hereby accepts such employment under this Agreement, for the period commencing
on the Effective Date and ending 36 months thereafter (or such earlier date as
is determined in accordance with Section 10 or 12 hereof). Additionally, on each
annual anniversary date from the Effective Date, the Employee's term of
employment shall be extended for an additional one-year period beyond the then
effective expiration date, provided the Board determines in a duly adopted
resolution that the performance of the Employee has met the Board's requirements
and standards, and that this Agreement shall be extended. Only those members of
the Board of Directors who have no personal interest in this Employment
Agreement shall discuss and vote on the approval and subsequent review of this
Agreement.
7. Loyalty; Noncompetition.
(a) During the period of her employment hereunder and
except for illnesses, reasonable vacation periods, and reasonable leaves of
absence, the Employee shall devote all her full business time, attention, skill,
and efforts to the faithful performance of her duties hereunder; provided,
however, from time to time, Employee may serve on the boards of directors of,
and hold any other offices or positions in, companies or organizations, which
will not present any conflict of interest with the Bank or any of its
subsidiaries or affiliates, or unfavorably affect the performance of Employee's
duties pursuant to this Agreement, or will not violate any applicable statute or
regulation. "Full business time" is hereby defined as that amount of time
usually devoted to like companies by similarly situated executive officers.
During the term of her employment under this Agreement, the Employee shall not
engage in any business or activity contrary to the business affairs or interests
of the Bank.
(b) Nothing contained in this Section shall be deemed to
prevent or limit the Employee's right to invest in the capital stock or other
securities of any business dissimilar from that of the Bank, or, solely as a
passive or minority investor, in any business.
(c) If the parties execute the "Non-Competition Addendum"
attached as Exhibit "A", its provisions shall apply to the Employee subsequent
to termination of her employment and shall survive termination of this Agreement
(unless the parties agree in writing to an earlier expiration date of the
Employee's obligations under said Non-Competition Addendum).
8. Standards. The Employee shall perform her duties under this
Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The
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Bank will provide Employee with the working facilities and staff customary for
similar executives and necessary for him to perform her duties.
9. Vacation and Sick Leave. At such reasonable times as the Board
shall in its discretion permit, the Employee shall be entitled, without loss of
pay, to absent himself voluntarily from the performance of her employment under
this Agreement, all such voluntary absences to count as vacation time, provided
that:
(a) The Employee shall be entitled to an annual vacation
in accordance with the policies that the Board periodically establishes for
senior management employees of the Bank.
(b) The Employee shall not receive any additional
compensation from the Bank on account of her failure to take a vacation, and the
Employee shall not accumulate unused vacation from one fiscal year to the next,
except in either case to the extent authorized by the Board.
(c) In addition to the aforesaid paid vacations, the
Employee shall be entitled without loss of pay, to absent himself voluntarily
from the performance of her employment with the Bank for such additional periods
of time and for such valid and legitimate reasons as the Board may in its
discretion determine. Further, the Board may grant to the Employee a leave or
leaves of absence, with or without pay, at such time or times and upon such
terms and conditions as such Board in its discretion may determine.
(d) In addition, the Employee shall be entitled to an
annual sick leave benefit as established by the Board.
10. Termination and Termination Pay. Subject to Section 12 hereof,
the Employee's employment hereunder may be terminated under the following
circumstances:
(a) Death. The Employee's employment under this Agreement
shall terminate upon her death 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 her death occurred.
(b) Disability. (1) The Bank may terminate the Employee's
employment after having established the Employee's Disability, in which event
the Employee shall be entitled to the compensation and benefits provided for
under this Agreement for (i) any period during the term of this Agreement and
prior to the establishment of the Employee's Disability during which the
Employee is unable to work due to the physical or mental infirmity, and (ii) any
period of Disability which is prior to the Employee's termination of employment
pursuant to this Section 10(b); provided that any benefits paid pursuant to the
Bank's long term disability plan will continue as provided in such plan without
reduction for payments made pursuant to this Agreement.
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(2) During any period that the Employee shall
receive disability benefits and to the extent that the Employee shall be
physically and mentally able to do so, she shall furnish such information,
assistance and documents so as to assist in the continued ongoing business of
the Bank and, if able, shall make himself available to the Bank to undertake
reasonable assignments consistent with her prior position and her physical and
mental health. The Bank shall pay all reasonable expenses incident to the
performance of any assignment given to the Employee during the disability
period.
(c) Just Cause. The Board may, by written notice to the
Employee, immediately terminate her employment at any time, for Just Cause. The
Employee shall have no right to receive compensation or other benefits for any
period after termination for Just Cause.
(d) Without Just Cause; Constructive Discharge. The Board
may, by written notice to the Employee, immediately terminate her employment at
any time for a reason other than her Disability or Just Cause, in which event
the Employee shall be entitled to receive the following compensation and
benefits (unless such termination occurs during the Protected Period, in which
event the benefits and compensation provided for in Section 12 shall apply): (i)
the greater of either (A) the salary provided pursuant to Section 3 hereof, up
to the expiration date of this Agreement, including any renewal term (the
"Expiration Date"), or (B) said salary for an additional 12-month period, and
(ii) at the Employee's election either (A) cash in an amount equal to the cost
to the Employee of obtaining all health, life, disability and other benefits
which the Employee would have been eligible to participate in through the
Expiration Date based upon the benefit levels substantially equal to those that
the Bank provided for the Employee at the date of termination of employment or
(B) continued participation under such Bank benefit plans through the Expiration
Date, but only to the extent the Employee continues to qualify for participation
therein. All amounts payable to the Employee shall be paid, at the option of the
Employee, either (I) in periodic payments through the Expiration Date, or (II)
in one lump sum within ten days of such termination.
(e) Termination or Suspension Under Federal Law. (1) If
the Employee is removed and/or permanently prohibited from participating in the
conduct of the Bank'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 Bank under this Agreement shall terminate, as of
the effective date of the order, but vested rights of the parties shall not be
affected.
(2) If the Bank 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; however, this Paragraph shall not affect the vested
rights of the parties.
(3) If a notice served under Section 8(e)(3) or
(g)(1) of the FDIA (12 U.S.C. 1818(e)(3) or (g)(1)) suspends and/or temporarily
prohibits the Employee from participating in the conduct of the Bank's affairs,
the Bank's obligations under this Agreement shall be suspended as of the date of
such service, unless stayed by appropriate proceedings. If the
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charges in the notice are dismissed, the Bank may in its discretion (i) pay the
Employee 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.
(4) Any payments made to the Employee pursuant
to this Agreement, or otherwise, are subject to and conditioned upon their
compliance with both 12 U.S.C. Section 1828(k) and any regulations promulgated
thereunder, and Regulatory Bulletin 27A, but only to the extent required
thereunder on the date any payment is required pursuant to this Agreement.
(f) Voluntary Termination by Employee. Subject to Section
12 hereof, the Employee may voluntarily terminate employment with the Bank
during the term of this Agreement, upon at least 90 days' prior written notice
to the Board of Directors, in which case the Employee shall receive only her
compensation, vested rights and employee benefits up to the date of her
termination (unless such termination occurs pursuant to Section 10(d) hereof or
within the Protected Period, in Section 12(a) hereof, in which event the
benefits and compensation provided for in Sections 10(d) or 12, as applicable,
shall apply).
11. No Mitigation. The Employee shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise and no such payment shall be offset or reduced by the
amount of any compensation or benefits provided to the Employee in any
subsequent employment.
12. Change in Control.
(a) Trigger Events. The Employee shall be entitled to
collect the severance benefits set forth in Subsection (b) hereof in the event
that either (1) the Employee voluntarily terminates employment within 90 days of
an event that both occurs during the Protected Period and constitutes Good
Reason, or (ii) the Bank or the Company or their successor(s) in interest
terminate the Employee's employment without her written consent and for any
reason other than Just Cause during the Protected Period.
(b) Amount of Severance Benefit. If the Employee becomes
entitled to collect severance benefits pursuant to Section 12(a) hereof, the
Bank shall pay the Employee a severance benefit equal to two times the
Employee's base annual salary in effect when the Protected Period begins.
The amount payable under Section 12(b)(i) shall be paid in one lump sum
within ten days of the later of the date of the Change in Control and the
Employee's last day of employment with the Bank or the Company. In the event
that the Employee, the Bank, and the Company jointly agree that the Employee has
collected an amount exceeding the Code ss.280G Maximum, the parties may agree in
writing that such excess shall be treated as a loan ab initio, which the
Employee shall repay to the Bank, on terms and conditions mutually agreeable to
the parties, together with interest at the applicable federal rate provided for
in Section 7872(f)(2)(B) of the Code.
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(c) Funding of Grantor Trust upon Change in Control.
Notwithstanding any other provision of this Agreement that may be contrary or
inconsistent herewith, not later than ten business days after a Change in
Control, the Bank shall (i) deposit in a Trust an amount equal to the benefit
payable under Section 12(b), unless the Employee has previously provided a
written release of any claims under this Agreement, and (ii) provide the trustee
of the Trust with a written direction to hold said amount and any investment
return thereon in a segregated account for the benefit of the Employee, and to
follow the procedures set forth in the next two paragraphs as to the payment of
such amounts from the Trust.
At any time or from time to time during the 27-consecutive month period
after a Change in Control, the Employee may provide the trustee of the Trust
with a written notice directing that the trustee pay to the Employee an amount
designated in the notice as being payable pursuant to this Agreement. Within
three business days after receiving said notice, the trustee of the Trust shall
send a copy of the notice to the Bank via overnight and registered mail return
receipt requested. On the fifth business day after mailing said notice to the
Bank, the trustee of the Trust shall pay the Employee the amount designated
therein in immediately available funds, unless prior thereto the Bank provides
the trustee with a written notice directing the trustee to withhold such
payment. In the latter event, the trustee shall submit the dispute to
non-appealable binding arbitration for a determination of the amount payable to
the Employee pursuant to this Agreement, and the costs of such arbitration
(including any attorneys' fees incurred by the Employee) shall be paid by the
Bank. The costs of such arbitration may be paid by the Bank only after an
express written finding by the Bank's board of directors that the payment of the
costs of such arbitration is not detrimental to the Bank. The trustee shall
choose the arbitrator to settle the dispute, and such arbitrator shall be bound
by the rules of the American Arbitration Association in making her
determination. The parties and the trustee shall be bound by the results of the
arbitration and, within three days of the determination by the arbitrator, the
trustee shall pay from the Trust the amounts required to be paid to the Employee
and/or the Bank, and in no event shall the trustee be liable to either party for
making the payments as determined by the arbitrator.
Upon the earlier of (i) receiving the Employee's written release of all
claims under this Agreement, or (ii) the date 27 months after the date on which
the Bank makes the deposit referred to in the first paragraph of this
subsection 12(c), the trustee of the Trust shall pay to the Bank the entire
balance remaining in the segregated account maintained for the benefit of the
Employee. The Employee shall thereafter have no further interest in the Trust
pursuant to this Agreement.
The funds in the Trust referred to in this subsection 12(c) are to be
used for payments due pursuant to the subsections 12(a) and 12(b) and not for
normal compensation.
13. Indemnification. The Bank and the Company agree that their
respective Bylaws shall continue to provide for indemnification of directors,
officers, employees and agents of the Bank and the Company, including the
Employee during the full term of this Agreement, and to at all times provide
adequate insurance for such purposes.
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14. Federal Income Tax Withholding. The Bank may withhold all
federal and state income or other taxes from any benefit payable under this
Agreement as shall be required pursuant to any law or government regulation or
ruling.
15. Successors and Assigns.
(a) Bank. This Agreement shall not be assignable by the
Bank, provided that this Agreement shall inure to the benefit of and be binding
upon any corporate or other successor of the Bank which shall acquire, directly
or indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Bank.
(b) Employee. Since the Bank is contracting for the
unique and personal skills of the Employee, the Employee shall be precluded from
assigning or delegating her rights or duties hereunder without first obtaining
the written consent of the Bank; provided, however, that nothing in this
paragraph shall preclude (i) the Employee from designating a beneficiary to
receive any benefit payable hereunder upon her death, or (ii) the executors,
administrators, or other legal representatives of the Employee or her estate
from assigning any rights hereunder to the person or persons entitled thereunto.
(c) Attachment. 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 exclusion, 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.
16. Amendments. No amendments or additions to this Agreement shall
be binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
17. Applicable Law. Except to the extent preempted by Federal law,
the laws of the State of Georgia shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
18. 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.
19. 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 and shall
supersede any prior agreement between the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first hereinabove written.
ATTEST: XXXXXX FEDERAL BANK
/s/ Xxxxx Xxxx By: /s/ X.X. Xxxxx, Xx.
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Asst. Secretary Its President & CEO
WITNESS:
/s/ Xxxxxxx Xxxxxx-West Xxxxxx X. Xxx
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Employee
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