EXHIBIT 10.3
Employment Agreement
This Employment Agreement (the "Agreement") is made and entered into
as of ________, 2001 by and between Charter Financial Corp., a federally-
chartered corporation having an office at 600 Third Avenue, West Point, GA 31833
(the "Company") and Robert L. Johnson, an individual residing at 3345 Barnes
Mill Road, Hamilton, GA 31811 (the "Executive").
Introductory Statement
CHARTERBANK, a federally-chartered savings bank having an office at
600 Third Avenue, West Point, GA 31833 (the "Bank") has reorganized from a
federally-chartered mutual savings bank to a federally-chartered stock savings
bank and has become a wholly-owned subsidiary of the Company, a mid-tier stock
holding company, which is majority owned by First Charter MHC, a mutual holding
company (the "Reorganization"). In connection with the Reorganization, certain
shares of the Company's common stock were sold in an initial public stock
offering. The Executive has served the Bank in an executive capacity for many
years and is familiar with the Bank's operations.
The Board of Directors of the Company has concluded that it is in the
best interests of the Company and their prospective shareholders to secure a
continuity in management following the Reorganization. They also consider it
desirable to establish a working environment for the Executive which minimizes
the personal distractions that might result from possible business combinations
in which the Company or the Bank might be involved. For these reasons, the Board
of Directors of the Company has decided to offer to enter into a contract with
the Executive for his future services. The Executive has accepted this
offer.
The terms and conditions which the Company and the Executive have
agreed to are as follows.
Agreement
Section 1. Employment.
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The Company hereby continues to employ the Executive, and the
Executive hereby accepts such continued employment, during the period and upon
the terms and conditions set forth in this Agreement.
Section 2. Employment Period; Remaining Unexpired Employment
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Period.
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(a) The Company shall employ the Executive during an initial period
of three (3) years beginning on the effective date of the Reorganization (the
"Employment Commencement Date") and ending on the day before the third (3/rd/)
anniversary of the Employment Commencement Date, and during the period of any
additional extensions described in section 2(b) (the "Employment Period").
(b) The Board of Directors of the Company shall conduct an annual
review of the Executive's performance on or about each anniversary of the
Employment Commencement Date (each, an "Anniversary Date") and may, on the basis
of such review and by written notice to the Executive, offer to extend the
Employment Period through the day before the third (3/rd/) anniversary of the
relevant Anniversary Date. In such event, the Employment Period shall be deemed
extended in the absence of objection from the Executive by written notice to the
Company given within ten (10) business days after his receipt of the Company's
offer of extension.
(c) Except as otherwise expressly provided in this Agreement, any
reference in this Agreement to the term "Remaining Unexpired Employment Period"
as of any date shall mean the period beginning on such date and ending on the
day before the third (3/rd/) anniversary of the Employment Commencement Date or,
if later, on the day before the third (3/rd/) anniversary of the last
Anniversary Date as of which the Employment Period was extended pursuant to
section 2(b).
(d) Nothing in this Agreement shall be deemed to prohibit the Company
from terminating the Executive's employment before the end of the Employment
Period with or without notice for any reason. This Agreement shall determine the
relative rights and obligations of the Company and the Executive in the event of
any such termination. In addition, nothing in this Agreement shall require the
termination of the Executive's employment at the expiration of the Employment
Period. Any continuation of the Executive's employment beyond the expiration of
the Employment Period shall be on an "at-will" basis unless the Bank, the
Company and the Executive agree otherwise.
Section 3. Duties.
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The Executive shall serve as Chief Executive Officer and President of
the Company and as Chief Executive Officer and President of the Bank, having
such power, authority and responsibility and performing such duties as are
prescribed by or under their respective By-Laws and as are customarily
associated with such positions. The Executive shall devote his full business
time and attention (other than during weekends, holidays, approved vacation
periods, and periods of illness or approved leaves of absence) to the business
and affairs of the Company and shall use his best efforts to advance their
respective best interests.
Section 4. Cash Compensation.
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In consideration for the services to be rendered by the Executive
hereunder, the Company shall pay to him a salary at an initial annual rate of
____________ ($_______), payable in approximately equal installments in
accordance with their respective customary payroll practices for senior
officers. The Company's Board of Directors shall review the Executive's annual
rate of salary at such times during the Employment Period as it deems
appropriate, but not less frequently than once every twelve (12) months, and
may, at its discretion, approve a salary increase. In addition to salary, the
Executive may receive other cash compensation from the Company or the Bank for
services hereunder at such times, in such amounts and on such terms and
conditions as the Boards of Directors the Company may determine.
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Section 5. Employee Benefit Plans and Programs.
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During the Employment Period, the Executive shall be treated as an
employee of the Company and shall be entitled to participate in and receive
benefits under any and all qualified or non-qualified retirement, pension,
savings, profit-sharing or stock bonus plans, any and all group life, health
(including hospitalization, medical and major medical), dental, accident and
long-term disability insurance plans, and any other employee benefit and
compensation plans (including, but not limited to, any incentive compensation
plans or programs, stock option and appreciation rights plans and restricted
stock plans) as may from time to time be maintained by, or cover employees of,
the Company in accordance with the terms and conditions of such employee benefit
plans and programs and compensation plans and programs and consistent with the
Company's customary practices.
Section 6. Indemnification and Insurance.
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(a) During the Employment Period and for a period of six years
thereafter, the Company shall cause the Executive to be covered by and named as
an insured under any policy or contract of insurance obtained by them to insure
their directors and officers against personal liability for acts or omissions in
connection with service as an officer or director of the Company or the Bank or
service in other capacities at their request. The coverage provided to the
Executive pursuant to this section 6 shall be of the same scope and on the same
terms and conditions as the coverage (if any) provided to other officers or
directors of the Company.
(b) To the maximum extent permitted under applicable law, during the
Employment Period and for a period of six years thereafter, the Company shall
indemnify the Executive against and hold him harmless from any costs,
liabilities, losses and exposures to the fullest extent and on the most
favorable terms and conditions that similar indemnification is offered to any
director or officer of the Company or any subsidiary or affiliate thereof.
Section 7. Outside Activities.
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The Executive may serve as a member of the boards of directors of such
business, community and charitable organizations as he may disclose to and as
may be approved by the Board of Directors of the Company (which approval shall
not be unreasonably withheld); provided, however, that such service shall not
materially interfere with the performance of his duties under this Agreement.
The Executive may also engage in personal business and investment activities
which do not materially interfere with the performance of his duties hereunder;
provided, however, that such activities are not prohibited under any code of
conduct or investment or securities trading policy established by the Company
and generally applicable to all similarly situated executives.
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Section 8. Working Facilities and Expenses.
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The Executive's principal place of employment shall be at the
Company's executive offices at the address first above written, or at such other
location as the Company and the Executive may mutually agree upon. The Company
shall provide the Executive at his principal place of employment with a private
office, secretarial services and other support services and facilities suitable
to his positions with the Company and necessary or appropriate in connection
with the performance of his assigned duties under this Agreement. The Company
shall provide to the Executive for his exclusive use an automobile owned or
leased by the Company and appropriate to his position, to be used in the
performance of his duties hereunder, including commuting to and from his
personal residence. The Company shall reimburse the Executive for his ordinary
and necessary business expenses, including, without limitation, all expenses
associated with his business use of the aforementioned automobile, fees for
memberships in such clubs and organizations as the Executive and the Company
shall mutually agree are necessary and appropriate for business purposes, and
his travel and entertainment expenses incurred in connection with the
performance of his duties under this Agreement, in each case upon presentation
to the payer of an itemized account of such expenses in such form as the payer
may reasonably require.
Section 9. Termination Due to Death.
------------------------
The Executive's employment with the Company shall terminate,
automatically and without any further action on the part of any party to this
Agreement, on the date of the Executive's death. In such event:
(a) The Company shall pay to the Executive's estate his earned but
unpaid compensation (including, without limitation, salary and all other
items which constitute wages under applicable law) as of the date of his
termination of employment. This payment shall be made at the time and in
the manner prescribed by law applicable to the payment of wages but in no
event later than thirty (30) days after the date of the Executive's
termination of employment.
(b) The Company shall provide the benefits, if any, due to the
Executive's estate, surviving dependents or his designated beneficiaries
under the employee benefit plans and programs and compensation plans and
programs maintained for the benefit of the officers and employees of the
Company. The time and manner of payment or other delivery of these benefits
and the recipients of such benefits shall be determined according to the
terms and conditions of the applicable plans and programs.
The payments and benefits described in sections 9(a) and (b) shall be referred
to in this Agreement as the "Standard Termination Entitlements."
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Section 10. Termination Due to Disability.
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The Company may terminate the Executive's employment upon a
determination, by vote of a majority of the members of the Board of Directors of
the Company, acting in reliance on the written advice of a medical professional
acceptable to them, that the Executive is suffering from a physical or mental
impairment which, at the date of the determination, has prevented the Executive
from performing his assigned duties on a substantially full-time basis for a
period of at least one hundred and eighty (180) days during the period of one
(1) year ending with the date of the determination or is likely to result in
death or prevent the Executive from performing his assigned duties on a
substantially full-time basis for a period of at least one hundred and eighty
(180) days during the period of one (1) year beginning with the date of the
determination. In such event:
(a) The Company shall pay and deliver to the Executive (or in the
event of his death before payment, to his estate and surviving dependents
and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b) In addition to the Standard Termination Entitlements, the Company
shall continue to pay the Executive his base salary, at the annual rate in
effect for him immediately prior to the termination of his employment,
during a period ending on the earliest of: (i) the expiration of one
hundred and eighty (180) days after the date of termination of his
employment; (ii) the date on which long-term disability insurance benefits
are first payable to him under any long-term disability insurance plan
covering employees of the Company (the "LTD Eligibility Date"); (iii) the
date of his death; and (iv) the expiration of the Remaining Unexpired
Employment Period (the "Initial Continuation Period"). If the end of the
Initial Continuation Period is neither the LTD Eligibility Date nor the
date of his death, the Company shall continue to pay the Executive his base
salary, at an annual rate equal to sixty percent (60%) of the annual rate
in effect for him immediately prior to the termination of his employment,
during an additional period ending on the earliest of the LTD Eligibility
Date, the date of his death and the expiration of the Remaining Unexpired
Employment Period.
A termination of employment due to disability under this section 10 shall be
effected by joint notice of termination given to the Executive by the Company
and shall take effect on the later of the effective date of termination
specified in such notice or the date on which the notice of termination is
deemed given to the Executive.
Section 11. Discharge with Cause.
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(a) The Company may terminate the Executive's employment during
the Employment Period, and such termination shall be deemed to have
occurred with "Cause", only if:
(i) The Board of Directors of the Company, by majority vote of
their entire membership, determine that the
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Executive should be discharged because of personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving
personal profit, intentional failure to perform stated duties,
willful violation of any law, rule or regulation (other than traffic
violations or similar offenses) or final cease and desist order, or
any material breach of this Agreement; and
(ii) at least forty-five (45) days prior to the votes
contemplated by section 11(a)(i), the Company has provided the Executive
with notice of its intent to discharge the Executive for Cause, detailing
with particularity the facts and circumstances which are alleged to
constitute Cause (the "Notice of Intent to Discharge"); and
(iii) after the giving of the Notice of Intent to Discharge and
before the taking of the votes contemplated by section 11(a)(i), the
Executive (together with his legal counsel, if he so desires) is afforded a
reasonable opportunity to make both written and oral presentations before
the Board of Directors of the Company for the purpose of refuting the
alleged grounds for Cause for his discharge; and
(iv) after the votes contemplated by section 11(a)(i), the
Company has furnished to the Executive a notice of termination which shall
specify the effective date of his termination of employment (which shall in
no event be earlier than the date on which such notice is deemed given) and
include a copy of a resolution or resolutions adopted by the Board of
Directors of the Company, certified by its corporate secretary and signed
by each member of the Board of Directors voting in favor of adoption of the
resolution(s), authorizing the termination of the Executive's employment
with Cause and stating with particularity the facts and circumstances found
to constitute Cause for his discharge (the "Final Discharge Notice").
(b) If the Executive is discharged during the Employment Period
with Cause, the Company shall pay and provide to him (or, in the event of his
death, to his estate, his surviving beneficiaries and his dependents) the
Standard Termination Entitlements only. Following the giving of a Notice of
Intent to Discharge, the Company may temporarily suspend the Executive's duties
and authority and, in such event, may also suspend the payment of salary and
other cash compensation, but not the Executive's participation in retirement,
insurance and other employee benefit plans. If the Executive is not discharged,
or is discharged without Cause, within forty-five (45) days after the giving of
a Notice of Intent to Discharge, payments of salary and cash compensation shall
resume, and all payments withheld during the period of suspension shall be
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promptly restored. If the Executive is discharged with Cause not later than
forty-five (45) days after the giving of the Notice of Intent to Discharge, all
payments withheld during the period of suspension shall be deemed forfeited and
shall not be included in the Standard Termination Entitlements. If a Final
Discharge Notice is given later than forty-five (45) days, but sooner than
ninety (90) days, after the giving of the Notice of Intent to Discharge, all
payments made to the Executive during the period beginning with the giving of
the Notice of Intent to Discharge and ending with the Executive's discharge with
Cause shall be retained by the Executive and shall not be applied to offset the
Standard Termination Entitlements. If the Company does not give a Final
Discharge Notice to the Executive within ninety (90) days after giving a Notice
of Intent to Discharge, the Notice of Intent to Discharge shall be deemed
withdrawn and any future action to discharge the Executive with Cause shall
require the giving of a new Notice of Intent to Discharge.
Section 12. Discharge without Cause.
-----------------------
The Bank and the Company may discharge the Executive at any time
during the Employment Period and, unless such discharge constitutes a discharge
with Cause:
(a) The Company shall pay and deliver to the Executive (or in the
event of his death before payment, to his estate and surviving dependents
and beneficiaries, as applicable) the Standard Termination
Entitlements.
(b) In addition to the Standard Termination Entitlements:
(i) During the Remaining Unexpired Employment Period, the
Company shall provide for the Executive and his dependents continued
group life, health (including hospitalization, medical and major
medical), dental, accident and long-term disability insurance benefits
on substantially the same terms and conditions (including any required
premium-sharing arrangements, co-payments and deductibles) in effect
for them immediately prior to the Executive's termination. The
coverage provided under this section 12(b)(i) may, at the election of
the Company, be secondary to the coverage provided as part of the
Standard Termination Entitlements and to any employer-paid coverage
provided by a subsequent employer or through Medicare, with the result
that benefits under the other coverages will offset the coverage
required by this section 12(b)(i).
(ii) The Company shall make a lump sum payment to the Executive
(or, in the event of his death before payment, to his estate), in an
amount equal to the estimated present value of the salary that
Executive would have earned if he had continued working for the
Company during the Remaining Unexpired Employment Period at the
highest annual rate of salary achieved during that portion of the
Employment Period which is prior to Executive's termination of
employment with the Company, where such present value is to be
determined using a discount rate equal to the applicable short-term
federal rate prescribed under section 1274(d) of the Internal Revenue
Code of 1986 ("Code"), compounded using the compounding period
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corresponding to the Company's regular payroll periods for its
officers. Such lump sum shall be paid in lieu of all other
payments of salary provided for under this Agreement in
respect of the period following any such termination.
(iii) The Company shall make a lump sum payment to the Executive
(or, in the event of his death before payment, to his estate), in an
amount equal to the payments that would have been made to Executive
under any cash bonus or long-term or short-term cash incentive
compensation plan maintained by, or covering employees of, the Company
if he had continued working for the Company during the Remaining
Unexpired Employment Period and had earned the maximum bonus or
incentive award in each calendar year that ends during the Remaining
Unexpired Employment Period, such payments to be equal to the product
of:
(A) the maximum percentage rate at which an
award was ever available to Executive under such incentive
compensation plan; multiplied by
(B) the salary that would have been paid to
Executive during each such calendar year at the highest
annual rate of salary achieved during that portion of the
Employment Period which is prior to Executive's termination
of employment with the Company.
Such payment shall be made (without discounting for early
payment) within thirty (30) days following the Executive's
termination of employment.
The payments and benefits described in section 12(b) are referred to in this
Agreement as the "Additional Termination Entitlements".
Section 13. Resignation.
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(a) The Executive may resign from his employment with the Company at
any time. A resignation under this section 13 shall be effected by notice of
resignation given by the Executive to the Company and shall take effect on the
later of the effective date of termination specified in such notice or the date
on which the notice of termination is deemed given by the Executive. The
Executive's resignation of any of the positions within the Bank or the Company
to which he has been assigned shall be deemed a resignation from all such
positions.
(b) The Executive's resignation shall be deemed to be for "Good
Reason" if the effective date of resignation occurs within ninety (90) days
after any of the following:
(i) the failure of the Company (whether by act or omission of its
Board of Directors, or otherwise) to appoint or re-appoint or elect or re-
elect the Executive to the position(s) with the Company specified in
section 3 of this Agreement or to a more senior office;
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(ii) if the Executive is or becomes a member of the Board
of Directors of the Company or the Bank, the failure of their
respective shareholders (whether in an election in which the
Executive stands as a nominee or in an election where the
Executive is not a nominee) to elect or re-elect the Executive to
membership at the expiration of his term of membership, unless
such failure is a result of the Executive's refusal to stand for
election;
(iii) a material failure by the Company, whether by amendment of its
certificate of incorporation or organization, by-laws, action of its Board
of Directors or otherwise, to vest in the Executive the functions, duties,
or responsibilities prescribed in section 3 of this Agreement; provided
that the Executive shall have given notice of such failure to the Company,
and the Company has not fully cured such failure within thirty (30) days
after such notice is deemed given;
(iv) any reduction of the Executive's rate of base salary
in effect from time to time, whether or not material, or any
failure (other than due to reasonable administrative error that
is cured promptly upon notice) to pay any portion of the
Executive's compensation as and when due;
(v) any change in the terms and conditions of any compensation or
benefit program in which the Executive participates which, either
individually or together with other changes, has a material adverse effect
on the aggregate value of his total compensation package; provided that the
Executive shall have given notice of such material adverse effect to the
Company, and the Company has not fully cured such failure within thirty
(30) days after such notice is deemed given;
(vi) any material breach by the Company of any material term,
condition or covenant contained in this Agreement; provided that the
Executive shall have given notice of such material adverse effect to the
Company, and the Company has not fully cured such failure within thirty
(30) days after such notice is deemed given; or
(vii) a change in the Executive's principal place of employment to a
place that is not the principal executive office of the Company, or a
relocation of the Company's principal executive office to a location that
is both more than thirty-five (35) miles away from the Executive's
principal residence and more than twenty-five (25) miles away from the
location of the Company's principal executive office on the date of this
Agreement.
In all other cases, a resignation by the Executive shall be deemed to be without
Good Reason.
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(c) In the event of the Executive's resignation before the
expiration of the Employment Period, the Company shall pay and deliver the
Standard Termination Entitlements. In addition, if the Executive's resignation
is deemed to be a resignation with Good Reason, the Company shall also pay and
deliver the Additional Termination Entitlements.
Section 14. Terms and Conditions of the Additional Termination
Entitlements.
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The Company and the Executive hereby stipulate that the damages which
may be incurred by the Executive following any termination of employment are not
capable of accurate measurement as of the date first above written and that the
Additional Termination Entitlements constitute reasonable damages under the
circumstances and shall be payable without any requirement of proof of actual
damage and without regard to the Executive's efforts, if any, to mitigate
damages. The Company and the Executive further agree that the Company may
condition the payment and delivery of the Additional Termination Entitlements on
the receipt of the Executive's resignation from any and all positions which he
holds as an officer, director or committee member with respect to the Company,
the Bank or any subsidiary or affiliate of either of them.
Section 15. Termination Upon or Following a Change of Control.
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(a) A "Change of Control" shall be deemed to have occurred upon the
happening of any of the following events:
(i) the consummation of a reorganization, merger or
consolidation of the Company with one or more other persons,
other than a transaction following which:
(A) at least 51% of the equity ownership interests
of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as
amended ("Exchange Act")) in substantially the same relative
proportions by persons who, immediately prior to such
transaction, beneficially owned (within the meaning of Rule
13d-3 promulgated under the Exchange Act) at least 51% of
the outstanding equity ownership interests in the Company;
and
(B) at least 51% of the securities entitled to vote
generally in the election of directors of the entity
resulting from such transaction are beneficially owned
(within the meaning of Rule 13d-3 promulgated under the
Exchange Act) in substantially the same relative proportions
by persons who, immediately prior to such transaction,
beneficially owned (within the meaning of Rule 13d-3
promulgated under the Exchange Act) at least 51% of the
securities entitled to vote generally in the election of
directors of the Company;
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(ii) the acquisition of all or substantially all of the
assets of the Company or beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 25% or more
of the outstanding securities of the Company entitled to vote
generally in the election of directors by any person or by any
persons acting in concert;
(iii) a complete liquidation or dissolution of the Company;
(iv) the occurrence of any event if, immediately following
such event, at least 50% of the members of the Board of Directors
of the Company do not belong to any of the following groups:
(A) individuals who were members of the Board of
Directors of the Company on the date of this Agreement; or
(B) individuals who first became members of the
Board of Directors of the Company after the date of this
Agreement either:
(1) upon election to serve as a member of the
Board of Directors of the Company by affirmative vote
of three-quarters of the members of such board, or of
a nominating committee thereof, in office at the time
of such first election; or
(2) upon election by the shareholders of the
Board of Directors of the Company to serve as a
member of such board, but only if nominated for
election by affirmative vote of three-quarters of the
members of the Board of Directors of the Company, or
of a nominating committee thereof, in office at the
time of such first nomination;
provided, however, that such individual's election or nomination did
not result from an actual or threatened election contest (within the
meaning of Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or
consents (within the meaning of Rule 14a-11 of Regulation 14A
promulgated under the Exchange Act) other than by or on behalf of the
Board of Directors of the Company; provided, however, that this
section 15(a)(iv) shall only apply if the Company is not majority
owned by First Charter MHC; or
(v) any event which would be described in section
15(a)(i), (ii), (iii) or (iv) if the term "Bank" were substituted
for the term "Company" therein.
In no event, however, shall a Change of Control be deemed to have occurred as a
result of (i) any acquisition of securities or assets of the Company, the Bank,
or a subsidiary of either of them, by the Company, the Bank, or any subsidiary
of either of them, or by any employee benefit plan maintained by any of them or
(ii) the conversion of First Charter, MHC to a stock form company and the
issuance of additional shares of the Company in connection therewith. For
purposes of this section 15(a), the
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term "person" shall have the meaning assigned to it under sections 13(d)(3) or
14(d)(2) of the Exchange Act.
(b) For purposes of this Agreement, a "Pending Change of Control"
shall mean: (i) the signing of a definitive agreement for a transaction which,
if consummated, would result in a Change of Control; (ii) the commencement of a
tender offer which, if successful, would result in a Change of Control; or (iii)
the circulation of a proxy statement seeking proxies in opposition to management
in an election contest which, if successful, would result in a Change of
Control.
(c) Notwithstanding anything in this Agreement to the contrary, for
purposes of computing the Additional Termination Entitlements due upon a
termination of employment that occurs, or is deemed to have occurred, after a
Change of Control, the Remaining Unexpired Employment Period shall be deemed to
be three (3) full years.
Section 16. Covenant Not To Compete.
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The Executive hereby covenants and agrees that, in the event of his
termination of employment with the Company prior to the expiration of the
Employment Period, for a period of one year following the date of his
termination of employment with the Company, he shall not, without the written
consent of the Company, become an officer, employee, consultant, director or
trustee of any savings bank, savings and loan association, savings and loan
holding company, bank or bank holding company, any other entity engaged in the
business of accepting deposits or making loans or any direct or indirect
subsidiary or affiliate of any such entity, that entails working within the
State of Georgia or any city or county in any other state in which the Company
or the Bank maintains
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an office; provided, however, that this section 16 shall not apply if the
Executive is entitled to the Additional Termination Entitlements.
Section 17. Confidentiality.
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Unless he obtains the prior written consent of the Company, the
Executive shall keep confidential and shall refrain from using for the benefit
of himself, or any person or entity other than the Company or any entity which
is a subsidiary of the Company or of which the Company is a subsidiary, any
material document or information obtained from the Company, or from its parent
or subsidiaries, in the course of his employment with any of them concerning
their properties, operations or business (unless such document or information is
readily ascertainable from public or published information or trade sources or
has otherwise been made available to the public through no fault of his own)
until the same ceases to be material (or becomes so ascertainable or available);
provided, however, that nothing in this section 17 shall prevent the Executive,
with or without the Company's consent, from participating in or disclosing
documents or information in connection with any judicial or administrative
investigation, inquiry or proceeding to the extent that such participation or
disclosure is required under applicable law.
Section 18. Solicitation.
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The Executive hereby covenants and agrees that, for a period of one
year following his termination of employment with the Company or the Bank, he
shall not, without the written consent of the Company, either directly or
indirectly:
(a) solicit, offer employment to, or take any other
action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any
officer or employee of the Company, the Bank or any of their
respective subsidiaries or affiliates to terminate his or her
employment and accept employment or become affiliated with, or
provide services for compensation in any capacity whatsoever to,
any savings bank, savings and loan association, bank, bank
holding company, savings and loan holding company, or other
institution engaged in the business of accepting deposits, making
loans or doing business within the counties specified in section
16;
(b) provide any information, advice or recommendation
with respect to any such officer or employee of any savings bank,
savings and loan association, bank, bank holding company, savings
and loan holding company, or other institution engaged in the
business of accepting deposits, making loans or doing business
within the counties specified in section 16; that is intended, or
that a reasonable person acting in like circumstances would
expect, to have the effect of causing any officer or employee of
the Company, the Bank, or any of their respective subsidiaries or
affiliates to terminate his employment and accept employment or
become affiliated with, or provide services for compensation in
any capacity whatsoever to, any savings bank, savings and loan
association, bank, bank holding company, savings and loan holding
company, or other institution engaged in the business of
accepting deposits, making loans or doing business within the
counties specified in section 16;
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(c) solicit, provide any information, advice or recommendation or
take any other action intended, or that a reasonable person acting in like
circumstances would expect, to have the effect of causing any customer of
the Company or the Bank to terminate an existing business or commercial
relationship with the Company or the Bank.
Section 19. No Effect on Employee Benefit Plans or Programs.
-----------------------------------------------
The termination of the Executive's employment during the term of this
Agreement or thereafter, whether by the Company or by the Executive, shall have
no effect on the rights and obligations of the parties hereto under the
Company's or the Bank's qualified or non-qualified retirement, pension, savings,
thrift, profit-sharing or stock bonus plans, group life, health (including
hospitalization, medical and major medical), dental, accident and long term
disability insurance plans or such other employee benefit plans or programs, or
compensation plans or programs, as may be maintained by, or cover employees of,
the Company or the Bank from time to time; provided, however, that nothing in
this Agreement shall be deemed to duplicate any compensation or benefits
provided under any agreement, plan or program covering the Executive to which
the Company is a party and any duplicative amount payable under any such
agreement, plan or program shall be applied as an offset to reduce the amounts
otherwise payable hereunder.
Section 20. Successors and Assigns.
----------------------
This Agreement will inure to the benefit of and be binding upon the
Executive, his legal representatives and testate or intestate distributees, and
the Company and their respective successors and assigns, including any successor
by merger or consolidation or a statutory receiver or any other person or firm
or corporation to which all or substantially all of the assets and business of
the Company may be sold or otherwise transferred. Failure of the Company to
obtain from any successor its express written assumption of the Company's
obligations hereunder at least sixty (60) days in advance of the scheduled
effective date of any such succession shall be deemed a material breach of this
Agreement.
Section 21. Notices.
-------
Any communication required or permitted to be given under this
Agreement, including any notice, direction, designation, consent, instruction,
objection or waiver, shall be in writing and shall be deemed to have been given
at such time as it is delivered personally, or five (5) days after mailing if
mailed, postage prepaid, by registered or certified mail, return receipt
requested, addressed to such party at the address listed below or at such other
address as one such party may by written notice specify to the other party:
If to the Executive:
Robert L. Johnson
3345 Barnes Mill Road
Hamilton, GA 31833
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If to the Company:
Charter Financial Corp.
600 Third Avenue
West Point, GA 31833
Attention: Chairman, Personnel & Compensation Committee
of the Board of Directors
Section 22. Waiver.
------
Failure to insist upon strict compliance with any of the terms,
covenants or conditions hereof shall not be deemed a waiver of such term,
covenant, or condition. A waiver of any provision of this Agreement must be
made in writing, designated as a waiver, and signed by the party against whom
its enforcement is sought. Any waiver or relinquishment of any right or power
hereunder at any one or more times shall not be deemed a waiver or
relinquishment of such right or power at any other time or times.
Section 23. Counterparts.
------------
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same Agreement.
Section 24. Governing Law.
-------------
This Agreement shall be governed by and construed and enforced in
accordance with the federal laws of the United States and, to the extent that
federal law is inapplicable, accordance with the laws of Georgia applicable to
contracts entered into and to be performed entirely within the State of Georgia.
Section 25. Headings and Construction.
-------------------------
The headings of sections in this Agreement are for convenience of
reference only and are not intended to qualify the meaning of any section. Any
reference to a section number shall refer to a section of this Agreement, unless
otherwise stated.
Section 26. Entire Agreement; Modifications.
-------------------------------
This instrument contains the entire agreement of the parties relating
to the subject matter hereof, and supersedes in its entirety any and all prior
agreements, understandings or representations relating to the subject matter
hereof. No modifications of this Agreement shall be valid unless made in
writing and signed by the parties hereto.
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Section 27. Non-duplication.
---------------
In the event that the Executive shall perform services for the Bank or
any other direct or indirect subsidiary or affiliate of the Company or the Bank,
any compensation or benefits provided to the Executive by such other employer
shall be applied to offset the obligations of the Company hereunder, it being
intended that this Agreement set forth the aggregate compensation and benefits
payable to the Executive for all services to the Company, the Bank and all of
their respective direct or indirect subsidiaries and affiliates.
Section 28. Survival
--------
The provisions of sections 6, 16, 17, 18 and 19 shall survive the
expiration of the Employment Period or termination of the Agreement.
Section 29. Indemnification for Attorneys' Fees.
------------------------------------
The Company shall indemnify, hold harmless and defend Executive
against reasonable costs, including legal fees, incurred by him in connection
with or arising out of any action, suit or proceeding in which he may be
involved, as a result of his efforts, in good faith, to defend or enforce the
terms of this Agreement; provided, however, that Executive shall have
substantially prevailed on the merits pursuant to a judgment, decree or order of
a court of competent jurisdiction or of an arbitrator in an arbitration
proceeding. The determination whether the Executive shall have substantially
prevailed on the merits and is therefore entitled to such indemnification, shall
be made by the court or arbitrator, as applicable. In the event of a settlement
pursuant to a settlement agreement, any indemnification payment under this
section 29 shall be made only after a determination by the members of the Board
(other than the Executive and any other member of the Board to which the
Executive is related by blood or marriage) that the Executive has acted in good
faith and that such indemnification payment is in the best interests of the
Company.
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Section 30. Required Regulatory Provisions.
------------------------------
The following provisions are included for the purposes of complying
with various laws, rules and regulations applicable to the Company:
(a) Notwithstanding anything herein contained to the Company, in no
event shall the aggregate amount of compensation payable to the Executive under
section 12(b) hereof exceed the three times the Executive's average annual
compensation (within the meaning of OTS Regulatory Bulletin 27a or any successor
thereto) for the last five consecutive calendar years to end prior to his
termination of employment with the Company (or for his entire period of
employment with the Company if less than five calendar years). The compensation
payable to the Executive hereunder shall be further reduced (but not below zero)
if such reduction would avoid the assessment of excise taxes on excess parachute
payments (within the meaning of section 280G of the Code).
(b) Notwithstanding anything herein contained to the contrary, any
payments to the 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 Federal Deposit Insurance Act ("FDI Act"), 12 U.S.C. (S)1828(k),
and any regulations promulgated thereunder.
(c) Notwithstanding anything herein contained to the contrary, if
the Executive is suspended from office and/or temporarily prohibited from
participating in the conduct of the affairs of the Company pursuant to a notice
served under section 8(e)(3) or 8(g)(1) of the FDI Act, 12 U.S.C. (S)1818(e)(3)
or 1818(g)(1), the Company's obligations under this Agreement shall be suspended
as of the date of service of such notice, unless stayed by appropriate
proceedings. If the charges in such notice are dismissed, the Company, in its
discretion, may (i) pay to the Executive all or part of the compensation
withheld while the Company's obligations hereunder were suspended and (ii)
reinstate, in whole or in part, any of the obligations which were suspended.
(d) Notwithstanding anything herein contained to the contrary, if
the Executive is removed and/or permanently prohibited from participating in the
conduct of the Company's affairs by an order issued under section 8(e)(4) or
8(g)(1) of the FDI Act, 12 U.S.C. (S)1818(e)(4) or (g)(1), all prospective
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights and obligations of the Company
and the Executive shall not be affected.
(e) Notwithstanding anything herein contained to the contrary, if
the Company is in default (within the meaning of section 3(x)(1) of the FDI Act,
12 U.S.C. (S)1813(x)(1), all prospective obligations of the Company under this
Agreement shall terminate as of the date of default, but vested rights and
obligations of the Company and the Executive shall not be affected.
(f) Notwithstanding anything herein contained to the contrary, all
prospective obligations of the Company hereunder shall be terminated, except to
the extent that a continuation of this Agreement is necessary for the continued
operation of the Company: (i) by the Director of the OTS or his designee or the
Federal Deposit Insurance Corporation ("FDIC"), at the time the FDIC enters into
an agreement to provide assistance to or on behalf of the Company under the
authority contained in section 13(c) of the FDI Act, 12 U.S.C. (S)1823(c); (ii)
by the Director of the OTS or his designee at the time such Director or designee
approves a supervisory merger to resolve problems related to the
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operation of the Company or when the Company is determined by such Director to
be in an unsafe or unsound condition. The vested rights and obligations of the
parties shall not be affected.
If and to the extent that any of the foregoing provisions shall cease to be
required or by applicable law, rule or regulation, the same shall become
inoperative as though eliminated by formal amendment of this Agreement.
Section 31. Guarantee; Non-Duplication.
--------------------------
The Company hereby agrees to guarantee the payment by the Bank of any
benefits and compensation to which the Executive is or may be entitled to under
the terms and conditions of the employment agreement of even date herewith
between the Bank and the Executive. In the event that the Executive shall
perform services for the Bank or any other direct or indirect subsidiary of the
Company, any compensation or benefits provided to the Executive by such other
employer shall be applied to offset the obligations of the Company hereunder, it
being intended that this Agreement set forth the aggregate compensation and
benefits payable to the Executive for all services to the Company and all of its
direct or indirect subsidiaries.
Section 32. Effective Date.
--------------
This Agreement shall become effective (the "Effective Date") upon the
later of the following two dates: (a) the effective date of the Bank's
conversion from a federally chartered mutual savings bank to a stock form
savings bank pursuant to the Reorganization or (b) the date the OTS advises the
Bank in writing that it either approves or has no objection to the terms and
conditions of this Agreement. The Company and the Executive each hereby
acknowledge and agree that the terms of this Agreement shall have no force or
effect prior to such Effective Date.
In Witness Whereof, the Company has caused this Agreement to be
executed and the Executive has hereunto set his hand, all as of the day and year
first above written.
__________________________________
Robert L. Johnson
Charter Financial Corp.
Attest:
By____________________________ By________________________________
Name: Name:
Title: Title:
[Seal]
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