EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT
(this
"
Agreement"
)
is made and entered into as of September 1, 2018 (the "
Effective Date
") by and among Newton Federal Bank, a federally-chartered savings association organized under the laws of the United States of America (the "
Bank
"),
Community First Bancshares, Inc.
, a federally-charted corporation organized under the laws of the United States of America (the "
Company
"), as a guarantor under the Agreement, and Kenneth D. Lumpkin, a resident of the State of Georgia (the
"
Executive
"
).
RECITALS
:
WHEREAS
, the
Bank
desires to employ the
Executive
on the terms and conditions set forth
herein
;
WHEREAS
, the
Executive
desires to be employed by
the Bank
and is willing to enter into this
Agreement
in consideration of the agreements set forth below;
NOW
THEREFORE, in consideration of the foregoing and for good and valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby
acknowledged, the
Bank, the Company
and the
Executive hereby
agree as follows:
Whenever used in this
Agreement
, the following terms and their variant forms shall have the meaning set forth below:
1.1
"
Affiliate
"
shall mean any business entity which controls the
Bank
or is controlled by or is under common control with the Bank, including the Company.
1.2
"
Agreement
"
shall mean this
Agreement
and any exhibits incorporated
herein
together with any amendments hereto made in the manner described in this
Agreement
.
1.3
"Area"
shall mean any county in which the Bank maintains an office or has pending an application for regulatory approval to open an office.
1.4
"
Average Monthly Compensation
"
shall mean the quotient determined by dividing the sum of the
Executive
's then current
Base Salary
(as defined in Section
4.1 hereof
) and the greater of the most recently paid Non-Equity
Incentive Compensation
(as defined in Section
4.2 hereof
) or the average of Non-Equity Incentive Compensation paid over the three most recent years by twelve.
1.5
"
Bank Information
"
means
Confidential Information
and
Trade Secrets
.
1.6
"
Board of Directors
"
shall mean the
Board of Directors of the Bank
.
1.7
"Business of the Bank"
shall mean the business conducted by the
Bank
and its Affiliates, which is the business of banking, including the solicitation of time and demand deposits and the making of residential, consumer, commercial and corporate loans.
1.8
"
Cause"
shall mean
termination of employment because of, in the good faith determination of the Bank, the Executive's:
(i)
material act of dishonesty or fraud in performing the Executive's duties on behalf of the Bank;
(ii)
willful misconduct that in the judgment of the Board of Directors will likely cause economic damage to the Bank or its Affiliates or injury to the business reputation of the Bank or its Affiliates;
(iii)
incompetence (in determining incompetence, the acts or omissions shall be measured against standards generally prevailing in the banking industry);
(iv)
breach of fiduciary duty involving personal profit;
(v)
intentional failure to perform stated duties under this Agreement after written notice thereof from the Board of Directors;
(vi)
willful violation of any law, rule or regulation (other than traffic violations or similar offenses which results only in a fine or other non-custodial penalty) that reflects adversely on the reputation of the Bank or its Affiliates, any felony conviction, any violation of law involving moral turpitude, or any violation of a final cease-and-desist order; or any violation of the policies and procedures of the Bank as outlined in the Bank's employee handbook, which would result in termination of employees, as from time to time amended and incorporated herein by reference; or
(vii)
material breach by the Executive of any provision of this Agreement.
Notwithstanding the foregoing, Cause shall not be deemed to exist unless there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than a majority of the entire membership of the Board of Directors at a meeting of the Board of Directors called and held for the purpose (after reasonable notice to the Executive and an opportunity for the Executive to be heard before the Board of Directors), finding that in the good faith opinion of the Board of Directors the Executive was guilty of conduct described above and specifying the particulars thereof. Prior to holding a meeting at which the Board of Directors is to make a final determination whether Cause exists, if the Board of Directors determines in good faith at a meeting of the Board of Directors, by not less than a majority of its entire membership, that there is probable cause for it to find that the Executive was guilty of conduct constituting Cause as described above, the Board of Directors may suspend the Executive from the Executive's duties hereunder for a reasonable period of time not to exceed fourteen (14) days pending a further meeting at which the Executive shall be given the opportunity to be heard before the Board of Directors. Upon a finding of Cause, the Board of Directors shall deliver to the Executive a notice of termination, as provided for in Section 11 hereof.
1.9
"
Change in Control
"
means any one of the following events occurring after the
Effective Date
:
(1)
Any one person or more than one person acting as a group acquires ownership of the stock of the Company that, together with stock held by such person or group, constitutes more than fifty percent (50%) of the total fair market value or total voting power of the stock of the Company;
(2)
A change in the effective control of the Bank or the Company occurs on either of the following dates: The date any one person or more than one person acting as a group acquires, either in a single transaction or series of transactions occurring within a twelve (12) month period, ownership of the stock possessing thirty percent (30%) of the total voting power of the stock of the Company or the date a majority of the members of the Board of Directors (of either the Bank or the Company) is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Board of Directors before the date of appointment or election; or
(3)
A change in the ownership of a substantial portion of the Bank's or the Company's assets occurs on the date that any one person, or more than one person acting as a group, acquires assets of the Bank or the Company that has a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all assets of the Bank or the Company immediately before such acquisition or acquisitions over a twelve (12) month period.
Notwithstanding the foregoing, in no event shall a Change in Control, as defined hereunder, include any second-step conversion of Community First Bancshares, MHC, the mutual holding company parent of the Company.
1.10
"
Confidential Information
"
means data and information relating to the Business of the
Bank
and its
Affiliates
(which does not rise to the status of a
Trade Secret
) which is or has been disclosed to the
Executive
or of which the
Executive
became aware as a consequence of or through the
Executive
's relationship to the
Bank
and which has value to the
Bank
and is not generally known to its competitors. Without limiting the foregoing,
Confidential Information
shall include:
(a)
Trade Secrets;
(b)
the names, addresses and banking requirements of the customers of the
Bank
and its
Affiliates
and the nature and amount of business done with such customers;
(c)
the names and addresses of
employees
and other business contacts of the
Bank
and its
Affiliates
;
(d)
the particular names, methods and procedures utilized by the
Bank
and its
Affiliates
in the conduct and advertising of its business;
(e)
application, operating system, communication and other computer software and derivatives thereof, including, without limitation, sources and object codes, flow charts, coding sheets, routines, sub-routing and related documentation and manuals of the
Bank
and its
Affiliates
; and
(f)
marketing techniques, purchasing information, pricing policies, loan policies, quoting procedures, financial information, customer data and other materials or information relating to the
Bank'
s and its
Affiliates'
manner of doing business.
Confidential Information
shall not include any data or information that has been voluntarily disclosed to the public by the
Bank
(except where such public disclosure has been made by the
Executive
without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means.
1.10
|
"
Good Reason
"
shall mean:
|
(a)
a
material diminution in the powers, responsibilities, duties or Base Salary of the
Executive
by the
Bank
, which condition remains uncured after the expiration of thirty (30) days following the delivery of written notice of the condition to the
Bank
by the
Executive
;
(b)
t
he failure of the
Board of Directors
to maintain the
Executive
's appointment to the offices of Executive Vice President and Chief Lending and Marketing Officer of the
Bank
; or
(c)
a relocation of the Executive's principal office of employment by more than fifty (50) miles; or
(d)
a
material breach of the terms of this
Agreement
by the
Bank
, which breach remains uncured after the expiration of thirty (30) days following the delivery of written notice of such breach to the
Bank
by the
Executive
.
The
Executive
must provide written notice to the
Bank
of the existence of a condition described in subsections
(a)
,
(b)
, (c) or
(d)
within 90 days of the initial existence of the condition and the
Bank
shall have 30 days to remedy the condition before the
Bank
is required to pay severance under Section
3 or Section 4, as applicable.
1.12
"
Permanent Disability"
shall mean a condition for which benefits would be payable under any long-
term
disability coverage (without regard to the application of any elimination period requirement) then provided to the
Executive
by the
Bank
or, if no such coverage is then being provided, the inability of the
Executive
to perform the material aspects of the
Executive
's duties under this
Agreement
for a period of at least one hundred eighty (180) consecutive days as certified by a physician chosen by the
Executive
and reasonably acceptable to the
Bank
. Notwithstanding the provisions in this Section
1.12
,
Permanent Disability
for purposes of this
Agreement
must also be a disability within the meaning of
Code Section 409A(a)(2)(A)(ii) and 409A(a)(2)(C) and Treas.
Reg. Section 1.409A-3
(a)(2).
1.13
"Term"
shall mean that period of time set forth in Section
3.1.
1.14
"
Trade Secrets"
means information, without regard to form, including, but not limited to, technical or nontechnical data, formulas, patterns, compilations, programs, devices, methods, techniques, drawings, processes, financial data, financial plans, product plans or lists of actual or potential customers or suppliers which (a) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2.1
The
Executive
is employed as Executive Vice President and Chief Lending and Marketing Officer of the
Bank
, subject to the direction of the
Board of Directors
or its designee(s). The
Executive
shall perform and discharge well and faithfully the authority, duties and responsibilities which may be assigned to the
Executive
from time to time by the
Board of Directors
in connection with the conduct of the Business of the
Bank
;
provided, however
, that in making its assignments, the
Board of Directors
shall assign only such authority, duties and responsibilities assigned to the
Executive
from time to time as are, in the aggregate, consistent with the duties and responsibilities as would be customarily assigned to a person occupying the position(s) held by the
Executive
pursuant to the terms of this
Agreement
.
2.2
In addition to the duties and responsibilities specifically assigned to the
Executive
pursuant to Section
2.1 hereof
, the
Executive
shall:
(a)
devote substantially all of the
Executive
's time, energy and skill during regular business hours to the performance of the duties of the
Executive
's employment (reasonable vacations and reasonable absences due to illness excepted) and faithfully and industriously perform such duties;
(b)
diligently follow and implement all reasonable and lawful management policies and decisions communicated by the
Board of Directors
, which is consistent with this
Agreement
; and
(c)
timely prepare and forward to the
Board of Directors
all reports and accounting as may be requested of the
Executive
.
2.3
T
he
Executive
shall devote the
Executive
's entire business time, attention and energies to the
business
of the
Bank
and shall not during the
Term
be engaged (whether or not during normal business hours) in any other business or professional activity, whether or not such activity is pursued for gain, profit or other pecuniary advantage; but this shall not be construed as preventing the
Executive
from:
(a)
managing the
Executive
's personal assets and investing the
Executive
's personal assets in businesses, which (subject to clause
(b)
below) are not in competition with the Business of the
Bank
and which will not require any services on the part of the
Executive
in their operation or affairs and in which the
Executive
's participation is solely that of an investor;
(b)
purchasing securities or other interests in any entity provided that such purchase shall not result in the
Executive
's collectively owning beneficially at any time five percent (5%) or more of the equity securities of any business in competition with the Business of the
Bank
;
(c)
serving on the
board of directors
of other organizations (including those organizations with which the Executive serves as of the Effective Date) so long as such service does not materially interfere with the performance of the
Executive
's duties under this
Agreement
and are not in competition with the Business of the
Bank or result in the violation of any listing standard of any securities exchange on which the securities of the Company are traded or listed for trading
; and
(d)
participating in civic and professional affairs and organizations and conferences, preparing or publishing papers or books or teaching or serving on the
board of directors
of an entity; provided that the Chairman of the Board of Directors or its designee approves in writing of the
Executive
joining such entity as a member of its
board of directors
prior to the
Executive
joining such
board of directors
.
3.
|
Term and Termination
.
|
3.1.1
Term and Annual Renewal
. The initial term of this Agreement shall begin as of the Effective Date and shall continue for twenty-four (24) months. Commencing on the first anniversary date of the Effective Date (the "Anniversary Date") and continuing on each Anniversary Date thereafter, the term of this Agreement shall renew for an additional year so that the remaining term of this Agreement is twenty-four (24) months; provided, however, that the disinterested members of the Boards of Directors must take the following actions within the time frames set forth below prior to each Anniversary Date: (1) at least 30 days prior to each Anniversary Date, conduct or review a comprehensive performance evaluation of the Executive for purposes of determining whether to extend this Agreement; and (2) affirmatively approve the renewal or non-renewal of this Agreement, which decision shall be included in the minutes of the meeting of the Board of Directors. If the decision of the disinterested members of the Board of Directors is not to renew this Agreement, then the Board of Directors shall provide the Executive with a written notice of non-renewal (the "
Non-Renewal Notice
") prior to any Anniversary Date, and the term of this Agreement shall terminate at the end of the then remaining term. Reference herein to the term of this Agreement shall refer to both the initial term and any extended terms.
3.1.2
Change in Control. Notwithstanding the foregoing, in the event the Bank or the Company has entered into an agreement to effect a transaction that would be considered a Change in Control, the term of this Agreement shall be extended automatically so that it is scheduled to expire no less than two (2) years beyond the effective date of the Change in Control, subject to extensions as set forth above.
3.1.3
Continued Employment Following Expiration of Term. Nothing in this Agreement shall mandate or prohibit a continuation of the Executive's employment following the expiration of the term of this Agreement.
3.2
Termination
. During the
Term
, the employment of the
Executive
under this
Agreement
may be terminated only as follows:
3.2.1
By the
Bank
:
(a)
For
Cause
, following approval of such action by the
Board of Directors
and upon written notice to the
Executive
subject to compliance with Section
1.8 hereof
, if applicable, in which event neither the
Bank nor the Company
shall have any further obligation to the
Executive
except for the payment of any amounts earned and unpaid and any vested benefits as of the
effective date
of termination; or
(b)
Without
Cause
at any time, following approval of such action by the
Board of Directors
, in which event the
Bank
shall be required to meet its obligations to the
Executive
under Section
3.3.1
below.
3.2.2
By the
Executive
:
(a)
For
Good Reason
, in which event the
Bank
shall be required to meet its obligations to the
Executive
under Section
3.3.1
below; or
(b)
Without
Good Reason
, provided that the
Executive
shall give the
Bank
sixty (60) days' prior written notice of the
Executive
's intent to terminate, in which event neither the Bank nor the Company shall have any further obligation to the
Executive
except for payment of any amounts earned and unpaid and any vested benefits as of the
effective date
of the termination.
3.2.3
At any time upon mutual, written
agreement
of the parties, in which event neither the Bank nor the Company shall have any further obligation to the
Executive
except for the payment of any amounts earned and unpaid and any vested benefits as of the
effective date
of the termination.
3.2.4
Notwithstanding anything in this
Agreement
to the contrary, the
Term
shall expire automatically upon the
Executive
's death or Permanent
Disability
, and if the reason for termination is the
Executive
's death, neither the Bank nor the Company shall have any further obligation to the
Executive
except for the payment of any amounts earned and unpaid and any vested benefits as of the
effective date
of termination and, if the reason for termination is the
Executive
's Permanent
Disability
, the
Bank
shall pay to the
Executive
an amount equal to the
Average Monthly Compensation
for each full month following such termination until the earlier of the month prior to the month for which the
Executive
's long-
term
disability benefits become payable (and including such month) or six (6) full months commencing with the month following the month in which the date of termination occurs.
3.3
Termination Payments
.
3.3.1
In the event the
Executive
's employment is terminated under this
Agreement
prior to the expiration of the
Term
pursuant to Section
3.2.1(b)
or Section
3.2.2(a)
, then subject to the requirements of Section
3.3.2
, the
Bank
shall pay to the
Executive,
as severance pay and liquidated damages the equivalent of the greater of (i) the current
Base Salary
, or (ii) the
Average Monthly Compensation, that would have been paid to the Executive for the remaining term of this Agreement
. The payment will be made in cash in a lump sum within five (5) days of the Executive's termination. In addition, from the
effective date
of the termination pursuant to Section
3.2.1(b)
or Section
3.2.2(a)
, the
Bank
shall pay monthly, by the fifth of each month, an amount, subject to applicable tax withholding, equal to what would be the
Executive
's cost of COBRA health continuation coverage for the
Executive
and eligible dependents for the greater of twelve (12) months or the period during which the
Executive
and those eligible dependents are entitled to COBRA health continuation coverage from the
Bank
. The Executive shall also be entitled to any amount earned and unpaid and any vested benefits as of the effective date of termination.
3.3.2
Payments under this Section
3.3
above are conditioned upon the
Executive
entering into a Release and Separation Agreement in the form attached hereto as
Exhibit A
and shall be paid as a lump sum or commence (for non-lump sum payments) on the next payroll date following the sixtieth (60th) day after the date of the
Executive
's date of termination of employment with any accrued but unpaid severance being paid on the date of the first payment; provided that the
Executive's Release and Separation Agreement
is effective at such time (signed, returned and the revocation period has expired).
3.4
Effect on Status as a Director
. In the event of Executive's termination of employment under this Agreement for any reason, such termination shall also constitute Executive's resignation as a director of the Bank or the Company, or any subsidiary or affiliate thereof, to the extent Executive is acting as a director of any of the aforementioned entities.
4.
Compensation
.
The
Executive
shall receive the following salary and benefits during the
Term
:
4.1
Base Salary
. The
Executive
shall be compensated at a base rate of
One Hundred and Seventy Thousand Dollars ($170,000.00)
per year, which may be increased from time to time in accordance with the immediately succeeding sentence ("
Base Salary
"
). The
Executive
's salary shall be reviewed annually, and the
Executive
shall be entitled to receive annually an increase in such amount, if any, as may be determined by the
Bank
based upon the performance of the
Executive
and the
Bank
and its compliance with regulatory standards. Any increase in Base Salary shall become the new Base Salary under this Agreement. Base Salary may not be decreased
other than a decrease that is applicable to all senior officers of the Bank and in a percentage not in excess of the percentage decrease for other senior officers.
Such salary shall be payable in accordance with the
Bank'
s normal payroll practices.
4.2
Incentive Compensation
. During the
Term
and in addition to the aforesaid Base Salary, the Executive shall be entitled to such additional non-equity incentive compensation as may be awarded from time to time, in its discretion, by the Board of Directors ("
Non-Equity Incentive Compensation
"). It is understood that any Non-Equity Incentive Compensation to be awarded to the
Executive
may be based on the attainment by the Bank or its Affiliates of certain performance goals established by the Board of Directors in consultation with the
Executive
relating to factors, including but not limited to, asset quality, profitability and growth. Notwithstanding anything contained in this
Agreement
to the contrary, any increase to the
Executive
's
Base Salary
and any Non-Equity Incentive Compensation paid to the
Executive
shall be
(i)
in compliance with regulations, pronouncements, directives, or order issued or promulgated by any governing regulatory agency and with any
agreement
by and between the
Bank
and such regulatory agencies,
(ii)
consistent with the safe and sound operation of the
Bank
,
(iii)
closely monitored by the
Board of Directors
, and
(iv)
comparable to such compensation paid to persons of similar responsibilities and duties in other insured institutions of similar size, in similar locations, and under similar circumstances including financial condition and profitability.
4.3
Equity Compensation
. The
Executive
may participate in any equity incentive program and be eligible for the grant of stock options, restricted stock, and other awards thereunder or under any similar plan adopted by the Bank or its Affiliates. Any options or similar awards shall be reflected by a separate written award and issued to the
Executive
.
4.4
Benefits
. In addition to the benefits specifically described in this
Agreement
, the
Executive
shall be entitled to such benefits as may be available from time to time for senior executives of the
Bank
similarly situated to the
Executive
. All such benefits shall be awarded and administered in accordance with the
Bank
's standard policies and practices. Such benefits may include, by way of example only, profit sharing plans, retirement or investment funds, dental, health and life insurance benefits and such other benefits as the
Bank
deems appropriate.
4.5
Reimbursement of Expenses; Provision of Business Development Expenses
. The
Bank
shall pay or reimburse the
Executive
for all reasonable travel and other expenses incurred by the
Executive
in the performance of his obligations and duties under this
Agreement
, as provided in the applicable policies of the
Bank
, as currently adopted or as may be adopted in the future by the
Board of Directors
. In addition to the foregoing,
the Bank
believes that its best interests will be more fully served if the Executive maintains active membership in or joins appropriate business or social clubs and other professional associations. Accordingly, upon prior approval of the
Board of Directors
,
the Bank
shall also reimburse the
Executive
for the dues and business-related expenditures associated with the
Executive
's membership(s) in such appropriate business or social clubs and such other professional organizations which, in the sole discretion of the
Bank
, are commensurate with the
Executive
's position. The
Bank
shall also reimburse reasonable expenditures associated with the
Executive
's continuing professional education, as well as for the reasonable expenditures of the Executive's spouse or partner to attend as appropriate, with expenditures for any calendar year in excess of $5,000 approved by the Board of Directors, with such $5,000 annual dollar limit to be reviewed not less frequently than annually by the Board of Directors.
4.6
Provision of Automobile
. The
Bank has and
shall continue to provide the
Executive
with an automobile allowance of $400.00 per month, plus the cost of related insurance, maintenance and fuel expenses. Such automobile allowance shall be subject to the
Bank'
s policies related thereto as may be adopted from time to time.
4.7
Vacation
. On a non-cumulative basis, the
Executive
shall be entitled to a number of vacation hours per calendar year as may be available from time to time for senior executives of the
Bank
similarly situated to the
Executive
, during which the
Executive
's compensation shall be paid in full. Such paid time off shall be subject to the
Bank'
s policies related thereto as may be adopted from time to time.
4.8
Withholding
. The
Bank
may deduct from each payment of compensation
hereunder
all amounts required to be deducted and withheld in accordance with applicable federal and state income tax, FICA and other withholding requirements.
4.9
Change in Control
.
In the event of the Executive's termination of employment without Cause or with Good Reason during the Term upon or following a Change in Control, the Bank (or its successor) shall pay to the Executive an amount equal to the product of two
(2) multiplied by the Executive's average annual Base Salary, bonus and profit sharing paid by the Bank to the Executive, (the "
Benefit
") as measured over the preceding three full fiscal years prior to the Change in Control (or the average annualized Base Salary and bonus paid to the Executive for such shorter period as the Executive has been employed by the Bank), but not less than his current Base Salary annualized plus bonus and profit sharing paid to the Executive in the prior calendar year immediately preceding such Change in Control. The Benefit shall be paid in cash in a lump sum within five (5) days following the effective date of the Executive's termination of employment. The Bank shall be entitled to withhold appropriate employment and income taxes, if required by applicable law, should the Benefit become payable.
The Executive shall be entitled to and the Bank shall pay to the Executive the Benefit set forth above if, during the Term, there is a Proposed Transaction and the Executive's employment is thereafter terminated by the Bank or its subsidiary other than for Cause or terminates for Good Reason, and the Proposed Transaction is consummated within one (1) year after the date of termination of the Executive's employment, then a Change in Control shall be deemed to have occurred during the Term and the termination of the Executive's employment shall be deemed to have occurred following a Change in Control. For the purposes of this Section 4.9, a "Proposed Transaction" shall mean a public announcement of a proposal for a transaction that, if consummated, would constitute a Change in Control.
5.
|
Bank and Affiliate Information
.
|
5.1
Ownership of Information
. All
Bank Information
received or developed by the
Executive
while employed by the
Bank
will remain the sole and exclusive property of the
Bank
.
5.2
Obligations of the
Executive
. The
Executive
agrees
(a)
to hold Bank
Information
in strictest confidence, and
(b)
not to use, duplicate, reproduce, distribute, disclose or otherwise disseminate
Bank Information
or any physical embodiments thereof and may in no event take any action causing or fail to take any action necessary in order to prevent any
Bank Information
from losing its character or ceasing to qualify as
Confidential Information
or a
Trade Secret
. In the event that the
Executive
is required by law to disclose any
Bank Information
, the
Executive
will not make such disclosure unless (and then only to the extent that) the
Executive
has been advised by independent legal counsel that such disclosure is required by law and then only after prior written notice is given to the
Bank
when the
Executive
becomes aware that such disclosure has been requested and is required by law. This Section
5
shall survive
for a period of twelve (12) months
following termination of this
Agreement
with respect to
Confidential Information
, and shall survive termination of this
Agreement
for so long as is permitted by the then-current Georgia Trade Secrets Act of 1990, O.C.G.A. §§ 10-1-760 to -767, with respect to
Trade Secrets
.
Anything
herein
to the contrary notwithstanding, the
Executive
shall not be restricted from reporting possible violations of federal, state, or local law or regulation to any governmental agency or entity, or from making other disclosures that are protected under the whistleblower provisions of federal, state, or local law or regulation, and the
Executive
shall not need the prior authorization of the
Bank
to make any such reports or disclosures and shall not be required to notify the
Bank
that he has made such reports or disclosures.
5.3
Delivery upon Request or Termination
. Upon request by the
Bank
, and in any event upon termination of the
Executive
's employment with the
Bank
, the
Executive
will promptly deliver to the
Bank
all property belonging to the
Bank
, including without limitation all
Bank Information
then in the
Executive
's possession or control.
The Executive agrees that during his employment by the Bank hereunder and, in the event of his termination other than by the Bank with or without Cause pursuant to Sections 3.2.1(a) or 3.2.1(b), or by the Executive for Good Reason pursuant to Section 3.2.2(a), for a period of twenty-four (24) months thereafter, the Executive will not (except on behalf of or with the prior written consent of the Bank), within the Area, either directly or indirectly, on his own behalf or in the service or on behalf of others, as an executive employee or in any other capacity which involves duties and responsibilities similar to those undertaken for the Bank, engage in any business which is the same as or essentially the same as the Business of the Bank. Notwithstanding the foregoing, the Bank agrees that the Executive may own up to 5% of the voting shares of any financial institution engaged in the Business of the Bank in the Area. Notwithstanding the foregoing, this provision shall not apply following a Change in Control. Nor shall this provision apply if the Board of Directors provides the Executive with a Non-Renewal Notice pursuant to Section 3.1.1 and the Executive subsequently terminates his employment with the Employer following the expiration of the tern of this Agreement.
7.
Non-Solicitation of Customers
.
The Executive agrees that during the Executive's employment by the Bank hereunder and, in the event of the Executive's termination other than by the Bank with or without Cause pursuant to Sections 3.2.1(a) or 3.2.1(b), or by the Executive for Good Reason pursuant to Section 3.2.2(a), for a period of twenty-four (24) months thereafter, the Executive will not (except on behalf of or with the prior written consent of the Bank), on the Executive's own behalf or in the service or on behalf of others, solicit, divert or appropriate or attempt to solicit, divert or appropriate, directly or by assisting others, any business from any of the Bank's or its Affiliate's customers, including actively sought prospective customers, with whom the Executive has or had material contact during the last twelve (12) months of the Executive's employment, for purposes of providing products or services that are competitive with those provided by the Bank or its Affiliates. Notwithstanding the foregoing, this provision shall not apply following a Change in Control.
8.
Non-Solicitation of Employees
.
The
Executive
agrees that during the
Executive
's employment by the
Bank hereunder
and, in the event of the
Executive
's termination other than by the
Bank
with or without
Cause
pursuant to Sections 3.2.1(a) or
3.2.1(b)
, or by the Executive for Good Reason pursuant to Section
3.2.2(a)
,
for a period of
twenty-four (24) months thereafter, the
Executive
will not on the
Executive
's own behalf or in the service or on behalf of others, solicit, recruit or hire away or attempt to solicit, recruit or hire away, directly or by assisting others, any employee of the
Bank
or its
Affiliates
, whether or not such employee is a full-time employee or a temporary employee of the
Bank
or its
Affiliates
and whether or not such employment is pursuant to written
agreement
and whether or not such employment is for a determined period or is at will. Notwithstanding the foregoing, this provision shall not apply following a Change in Control.
9
.
Remedies
.
The
Executive
agrees that the covenants contained in Sections
5
through 8
hereof
are of the essence of this
Agreement
; that each of the covenants is reasonable and necessary to protect the business, interests and properties of the
Bank
; and that irreparable loss and damage will be suffered by the
Bank
should he breach any of the covenants. Therefore, the
Executive
agrees and consents that, in addition to all the remedies provided by law or in equity, the
Bank
shall be entitled to a temporary restraining order and temporary and permanent injunctions to prevent a breach or contemplated breach of any of the covenants. The
Bank
and the
Executive
agree that all remedies available to the
Bank
or the
Executive
, as applicable, shall be cumulative. In addition, in the event the
Executive
fails to comply with any of the covenants contained in Section
5 hereof
and such failure shall not be cured to the reasonable satisfaction of the
Bank
within thirty (30) days after receipt of written notice thereof from the
Bank
, the
Bank
shall thereupon be relieved of liability for all obligations then remaining under Section
3.3 hereof
.
10.
Severability
.
The parties agree that each of the provisions included in this
Agreement
is separate, distinct and severable from the other provisions of this
Agreement
and that the invalidity or unenforceability of any
Agreement
provision shall not affect the validity or enforceability of any other provision of this
Agreement
. Further, if any provision of this
Agreement
is ruled invalid or unenforceable by a court of competent jurisdiction because of a conflict between the provision and any applicable law or public policy, the provision shall be redrawn to make the provision consistent with and valid and enforceable under the law or public policy.
11.
Notice
.
All notices and other communications required or permitted under this
Agreement
shall be in writing and, if mailed by prepaid first-class mail or certified mail, return receipt requested, shall be deemed to have been received on the earlier of the date shown on the receipt or three (3) business days after the postmarked date thereof. In addition, notices
hereunder
may be delivered by hand, facsimile transmission or overnight courier, in which event the notice shall be deemed effective when delivered or transmitted. All notices and other communications under this
Agreement
shall be given to the parties hereto at the following addresses:
(a)
|
If to the
Bank,
to the
Bank
at:
|
Newton Federal Bank
Attn: Chairman of the Board
8460 Dr. ML King Ave.
Covington, GA 30014
(b)
If to the
Executive
, addressed to the most recent address of
the Executive
set forth in the personnel records of the
Bank
.
12.
Assignment
.
The rights and obligations of the
Bank
under this
Agreement
shall inure to the
benefit
of and shall be binding upon the successors and assigns of the
Bank
, as applicable, including without limitation, a purchaser of all or substantially all the assets of the
Bank
. If the
Agreement
is assigned pursuant to the foregoing sentence, the assignment shall be by novation and
the Bank
shall have no further liability
hereunder
, and the successor or assign, as applicable, shall become the "
Bank
"
hereunder
. No party hereto may assign or delegate this
Agreement
or any of its rights and obligations
hereunder
without the written consent of the other parties hereto.
13.
Waiver
.
A waiver by the
Bank
of any breach of this
Agreement
by the
Executive
shall not be effective unless in writing, and no waiver shall operate or be construed as a waiver of the same or another breach on a subsequent occasion.
14.
Arbitration
.
Except for any claim for injunctive relief, any controversy or claim arising out of or relating to this
Agreement
, or the breach thereof, shall be settled by binding arbitration in accordance with the
Commercial Arbitration Rules
of the American Arbitration Association, which shall be conducted by a three-person arbitration panel, one of whom shall be selected by each party and the third of whom shall be selected jointly upon mutual
agreement
of both parties. The place of arbitration shall be Fulton County, Georgia and the
Bank
and the
Executive
agree that they will seek to enforce any arbitration award in the Superior Court of Fulton County. The decision of the arbitration panel shall be final and binding upon the parties and judgment upon the award rendered by the arbitration panel may be entered by any court having jurisdiction. The
Bank
agrees to pay the fees and expenses associated with the arbitration proceedings.
15.
Attorneys' Fees
.
With respect to arbitration of disputes and if litigation ensues between the parties concerning the enforcement of an arbitration award, each party shall pay its own fees, costs and expenses; provided, however, the
Bank
shall advance to the
Executive
reasonable fees, costs and expenses incurred by the
Executive
in preparing for and in initiating or defending against any proceeding or suit brought to enforce rights or obligations set forth in this
Agreement
. Such advances shall be made within thirty (30) days after receiving copies of invoices presented by the
Executive
for such fees, costs and expenses. The
Executive
shall have the obligation to reimburse the
Bank
within sixty (60) days following the final disposition of the matter (including appeals) to the full extent of the aggregate advances unless the panel of arbitrators or court, as the case may be, has ruled in favor of the
Executive
on the merits of the substantive issues in dispute.
16.
Applicable Law
.
This
Agreement
shall be construed and enforced under and in accordance with the laws of the State of
Georgia
, except to the extent governed by the laws of the
United States of America
in which case federal laws shall govern. The parties agree that the Superior Court of Fulton County, Georgia, shall have jurisdiction of any case or controversy arising under or in connection with this
Agreement
and shall be a proper forum in which to adjudicate such case or controversy. The parties consent to the jurisdiction of such courts.
17.
Interpretation
.
Words importing any gender include all genders. Words importing the singular form shall include the plural, and vice versa. The terms "
herein
," "
hereunder
," "
hereby
," "hereto," "
hereof"
and any similar terms refer to this
Agreement
. Any captions, titles or headings preceding the text of any article, section or subsection
herein
are solely for convenience of reference and shall not constitute part of this
Agreement
or affect its meaning, construction or effect.
18.
Entire
Agreement
.
This
Agreement
embodies the entire and final
agreement
of the parties on the subject matter stated in the
Agreement
. No amendment or modification of this
Agreement
shall be valid or binding upon the
Bank
or the
Executive
unless made in writing and signed by all parties. All prior understandings and agreements relating to the subject matter of this
Agreement
are
hereby
expressly terminated.
19.
Rights of Third Parties
.
Nothing
herein
expressed is intended to or shall be construed to confer upon or give to any person, firm or other entity, other than the parties hereto and their permitted assigns, any rights or remedies under or by reason of this
Agreement
.
20.
Survival
.
The obligations of the
Bank
pursuant to Sections 3.2.4 and 3.3 and the obligations of the
Executive
pursuant to Sections
5
, 6, 7 and 8 shall survive the termination of the employment of the
Executive hereunder
for the period designated under each of those respective sections.
21.
Compliance with Regulatory Restrictions
.
(a)
The Bank may terminate the Executive's employment at any time, but any termination by the Board of Directors other than termination for Cause shall not prejudice the Executive's right to compensation or other benefits under this Agreement. The Executive shall have no right to receive compensation or other benefits for any period after termination for Cause.
(b)
If the 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 §1818(e)(3)] or 8(g)(1) [12 USC §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 the 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 the 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 §1818(e)(4)] or 8(g)(1) [12 USC §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 §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 OCC or his or her designee, at the time the Federal Deposit Insurance Corporation ("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 §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 the Executive, 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.
22.
Section 409A of the Code
.
For purposes of compliance with
Code Section 409A
:
(a)
It is intended that this
Agreement
shall comply with the provisions of
Code Section 409A
and the Treasury regulations relating thereto, or an exemption to Code Section 409A. Any payments that qualify for the "short-
term
deferral" exception shall be considered as paid first, then any payments that qualify for the separation pay plan exception shall be considered as paid next, then payments that qualify for any other exception under Section
Code
409A shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under
Code Section 409A
, each payment of compensation under this
Agreement
shall be treated as a separate payment of compensation for purposes of applying the deferral election rules and the exclusion for certain short-
term
deferral amounts under Code Section 409A. All payments to be made upon a termination of employment under this
Agreement
that constitute non-qualified deferred compensation may only be made upon a "
separation from service
" under Section
Code
409A. In no event may the
Executive
, directly or indirectly, designate the calendar year of any payment under this
Agreement
. To the extent permitted under
Code Section 409A
or any Internal Revenue Service ("
IRS
"
)
or Treasury rules or other guidance issued thereunder, the
Bank
may, in consultation with the
Executive
, modify the
Agreement
in order to
cause
the provisions of the
Agreement
to comply with the requirements of
Code Section 409A
, so as to avoid the imposition of taxes and penalties on the
Executive pursuant to Code Section 409A
.
(b)
Notwithstanding anything to the contrary in this
Agreement
, all reimbursements and in-kind benefits provided under this
Agreement
shall be made or provided in accordance with the requirements of
Code Section 409A
, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the
Executive
's lifetime (or during a shorter period of time specified in this
Agreement
), (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in- kind benefits to be provided, in any other calendar year, (iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another
benefit
.
(c)
Notwithstanding any other provision of this
Agreement
to the contrary and if applicable, if the
Executive
is considered a "
specified employee"
for purposes of
Code Section 409A
(as determined in accordance with the methodology established by the
Bank
as in effect on the date of
separation from service
), (i) any payment or other
benefit
that constitutes nonqualified deferred compensation within the meaning of
Code Section 409A
that is otherwise due to the
Executive
under this
Agreement
during the six-month period following his
separation from service
(as determined in accordance with
Code Section 409A
) on account of his
separation from service
shall be accumulated and paid to the
Executive
on the first business day of the seventh month following his
separation from service
(the "
Delayed Payment Date
"
). If the
Executive
dies during the postponement period, the amounts and entitlements delayed on account of
Code Section 409A
shall be paid to the personal representative of his estate on the first to occur of the
Delayed Payment Date
or 30 days after the date of the
Executive
's death.
23.
Source of Payments
.
All payments provided for in this Agreement shall be timely paid from the general funds of the Bank. The Company, however, unconditionally guarantees payment and provision of all amounts and benefits due hereunder to the Executive and, if such amounts due from the Bank are not timely paid or provided by the Bank, such amounts shall be paid by the Company.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
Agreement
in accordance with the provisions
hereof
.
Executed this 4th day of September, 2018.
|
/s/ Kenneth D. Lumpkin
|
|
KENNETH D. LUMPKIN
|
Executed this 4th day of September, 2018.
|
/s/ Johnny S. Smith
|
|
COMMUNITY FIRST BANCSHARES, INC.
|
|
By: Johnny S. Smith
Title: President and Chief Executive Officer
|
Executed this 4th day of September, 2018.
|
/s/ Johnny S. Smith
|
|
NEWTON FEDERAL BANK
|
|
By: Johnny S. Smith
Title: President and Chief Executive Officer
|
EXHIBIT
A
RELEASE AND SEPARATION AGREEMENT
PLEASE READ CAREFULLY
This
Release and Separation Agreement (this "
Agreement
") is made and entered into by and between
[INSERT NAME]
("
Executive
"), Community First Bancshares, Inc. (the "
Company
"), and Newton Federal Bank (the "
Bank
"), as well as any affiliated or related entities, subsidiaries, or divisions, and the shareholders, directors, officers,
Executives
, and agents thereof (collectively referred to as the "
Bank and its Affiliates
").
THE PARTIES acknowledge the following:
WHEREAS
,
Executive
's employment was terminated by the Bank effective as of
[INSERT DATE]
(the "
Termination Date
"); and
WHEREAS
,
Executive
desires to receive severance benefits provided pursuant to this
Agreement
, and the Bank is willing to provide these benefits to
Executive
on the condition that
Executive
enters into this
Agreement
.
THEREFORE
, in consideration of the mutual agreements and promises set forth within this
Agreement
, the receipt and sufficiency of which are
hereby
acknowledged,
Executive
and
Bank and its Affiliates
agree as follows:
1.
Severance
Benefits
.
In consideration for the
Executive
's promises as set forth
herein
, the Bank shall pay
Executive
the following severance benefits:
a.
An amount equal to $
[INSERT AMOUNT]
,
less applicable deductions and withholdings, which shall be paid in equal monthly
for a period of twelve (12) months
. This severance payment will be made on the next payroll date following the sixtieth (60th) day after the date of
Executive
's date of termination of employment, provided
Executive
has executed and not revoked this
Agreement
.
b.
[INSERT OTHER SEVERANCE AMOUNTS AS APPLICABLE]
2.
Prior Wages, Salary, and Expenses.
Executive
acknowledges that on or about
[INSERT DATE]
he or she received his or her final salary payment of $
[INSERT AMOUNT]
plus any unused accrued vacation, less applicable deductions and withholdings.
3.
Release.
Executive hereby
releases, acquits, and forever discharges the Bank, its parent companies, subsidiaries, divisions, affiliates and controlling persons (if any), their officers, directors, board members,
Executives
, representatives, attorneys, personal representatives, affiliated or unaffiliated benefit plans, third-party administrators, any and all of their successors and assigns, and all persons acting by, through, under, or in concert with any of them (collectively the "
Bank and its Affiliates
") from any and all actions, causes of action, claims, demands, losses, claims for attorneys' fees, claims for severance of any kind or origin and all other forms of civil damages, occurrences, and liabilities of any kind whatsoever, both known or unknown, arising out of any matter, happening, or thing, from the beginning of time to the date of this
Agreement
is signed by
Executive
, specifically including, but not limited to, any and all liability arising from, including amendments to and anti-retaliation provisions deriving from, the following:
·
|
Local, state, or federal common law, statute, regulation, or ordinance;
|
·
|
Title VII of the
Civil Rights Act of 1964
;
|
·
|
Section 1981 of the
Civil Rights Act
of 1866;
|
·
|
the Age Discrimination in Employment Act of 1967;
|
·
|
the Americans with Disabilities Act of 1990;
|
·
|
the
Family and Medical Leave Act
;
|
·
|
the Employee Retirement Income Security Act of 1974;
|
·
|
the
Health Insurance Portability and Accountability Act
;
|
·
|
the
Occupational and Safety Health Act
;
|
·
|
the
Uniformed Services Employment and Re-employment Act of 1994
;
|
·
|
Executive Orders
11246 and 11141;
|
·
|
the
Worker Adjustment and Retraining Notification Act
;
|
·
|
the
Rehabilitation Act of 1973
;
|
·
|
the Medicare, Medicaid and SCHIP
Extension Act of 2007
;
|
·
|
state workers' compensation laws;
|
·
|
state non-discrimination and/or human affairs laws;
|
·
|
state payment of wages laws, acts or regulations;
|
·
|
Executive
's employment relationship and/or affiliation with the
Bank and its Affiliates.
|
This release also includes a release of any claims for wrongful termination, breach of express or implied contract, intentional or negligent infliction of emotional distress, libel slander, as well as any other claims, whether in tort, contract or equity, under federal or state statutory or common law.
Without waiving any prospective or retrospective rights under the Fair Labor Standards Act ("
FLSA
"),
Executive
admits that he or she has received from the
Bank and its Affiliates
all rights and benefits, if any, potentially due to him or her pursuant to the
FLSA
.
Executive
states that he or she is aware of no facts (including any injuries or illnesses) which might lead to his or her filing of a workers' compensation claim against the
Bank and its Affiliates
. It is the parties' intent to release all claims which can legally be released but no more than that.
4.
Covenant Not to Sue.
Executive
represents that he or she has no claims pending or filed with any local, state or federal agency (including the U.S. Equal Employment Opportunity Commission, the U.S. Department of Labor, and any comparable state or local administrative agency) or court against the
Bank and its Affiliates
as of the date this
Agreement
was signed by
Executive
.
Executive
further agrees that he or she will not file or participate in any lawsuit against the
Bank and its Affiliates
arising out of or in connection with the employment relationship previously existing between them or the termination of that relationship other than one based upon the alleged violation of this
Agreement by the Bank and its Affiliates
. The foregoing shall be construed as a covenant not to sue. This
Agreement
may be introduced as evidence at any legal proceeding as a complete defense to any claims existing as of the date of this
Agreement
ever asserted by
Executive
against the
Bank and its Affiliates
.
5.
Discrimination Charges;
ADEA
Challenges to this
Agreement
.
Nothing in this
Agreement
shall be interpreted or applied in a manner that affects or limits
Executive
's otherwise lawful ability to bring an administrative charge with, to participate in an investigation conducted by, or to participate in a proceeding involving the U.S. Equal Employment Opportunity Commission or other comparable state or local administrative agency. However, Executive specifically agrees that the consideration provided to him or her in this
Agreement
represents full and complete satisfaction of any monetary relief or award that could be sought or awarded to
Executive
in any administrative action (including any proceedings before the U.S. Equal Employment Opportunity Commission or any comparable state or local agency) arising from events related to his or her employment with the Bank or the termination thereof. Additionally, nothing in this
Agreement
shall be interpreted or applied in a manner that affects or limits
Executive
's ability to challenge this
Agreement
's compliance with notice and other requirements of the Age Discrimination in Employment Act ("
ADEA
").
6.
No Prior Assignment.
Executive
further warrants and covenants, recognizing that the truth of this warranty and covenant is material to the above consideration having passed, that he or she has not assigned, transferred or conveyed at any time to any individual or entity any alleged rights, claims or causes of action against the
Bank and its Affiliates
.
7.
Medicare
Benefits
.
Executive
affirms, covenants, and warrants he or she is not a Medicare beneficiary and is not currently receiving, has not received in the past, will not have received at the time of payment pursuant to this
Agreement
, is not entitled to, is not eligible for, and has not applied for or sought Social Security or Medicare benefits. In the event any statement in the preceding sentence is incorrect (for example, but not limited to, if
Executive
is a Medicare beneficiary, etc.), the following sentences (i.e., the remaining sentences of this paragraph) apply:
Executive
affirms, covenants, and warrants he or she has made no claim against, nor is he or she aware of any facts supporting any claim against, the
Bank and its Affiliates
under which it could be liable for medical expenses incurred by the
Executive
before or after the execution of this
Agreement
. Furthermore, Executive is aware of no medical expenses which Medicare has paid and for which the
Bank and its Affiliates
is or could be liable.
Executive
agrees and affirms that, to the best of his or her knowledge, no liens of any governmental entities, including those for Medicare conditional payments, exist.
Executive
will indemnify, defend, and hold the
Bank and its Affiliates
harmless from Medicare claims, liens, damages, conditional payments, and rights to payment, if any, including attorneys' fees, and
Executive
further agrees to waive any and all future private causes of action for damages pursuant to 42 U.S.C. § 1395y(b)(3)(A)
et seq
.
8.
Performance.
The Bank's obligation to perform under this
Agreement
is conditioned upon
Executive
's agreements and promises to the
Bank and its Affiliates
as set forth
herein
. In the event
Executive
breaches any such agreements or promises or causes any such agreements or promises to be breached, the Bank's obligations to perform under this
Agreement
shall automatically terminate and the
Bank and its Affiliates
shall have no further obligation to
Executive
. Further, the
Bank and its Affiliates
shall be entitled to seek, at its option, the return of all but $100.00 of the severance benefits paid to
Executive
pursuant to this
Agreement
.
9.
Bank Information
, Non-Solicitation of Customers and Non-Solicitation of Employees.
Executive
agrees that he or she will comply with the obligations provided in Sections 5 through 7 of the
Employment Agreement by and among Executive
, Community First Bancshares, Inc., and Newton Federal Bank dated
[]
(the "
Employment Agreement
"), related to confidential information of the
Bank and its Affiliates
, non-solicitation of customers and non-solicitation of
Executives
, for the terms stated in the
Employment Agreement
.
10.
Disparagement.
Executive
agrees and covenants that he or she will not in any way do or say anything at any time which disparages or derogates the
Bank and its Affiliates
, its business interests or reputation, or any of its individual directors, officers,
Executives
, or agents.
11.
No Admission of Liability.
Nothing in this
Agreement
(or the
Agreement
itself) shall operate or be interpreted as an admission of liability as to any of the claims, charges, actions and lawsuits released
hereby
. The
Bank and its Affiliates
, and each of its individual directors, officers,
Executives
, agents and insurers, and their successors, individually and collectively, expressly denies any such liability.
12.
Arbitration.
Any party
claiming any violation of this Agreement
or seeking any remedy or relief in any way relating to or affecting this
Agreement
, or any payments or benefits granted by it, must serve a written notice upon the other party describing the alleged violation, identifying all relevant provisions of this
Agreement
, and demanding arbitration. The notice and request must be served within thirty (30) calendar days of the incident (or the first date on which the party with reasonable diligence should have become aware of it) giving rise to the alleged violation. Failure to observe these time limits and procedures will be deemed a waiver of all right to any relief or remedy.
Any dispute arising out of or relating to this
Agreement
shall be resolved by final and binding arbitration in accordance with the
Employment Arbitration Rules
of the American Arbitration Association and will be submitted to a National Academy arbitrator selected in accordance with such rules. In consideration of this
agreement
to submit such disputes to final and binding arbitration, the parties expressly waive the right to submit any dispute arising under this
Agreement
to any court or government agency, provided, however, that this shall not prevent
Executive
and the
Bank and its Affiliates
from seeking injunctive relief in appropriate circumstances without first invoking and/or exhausting these procedures. The prevailing party (to be determined by the arbitrator) will be entitled to reimbursement of its reasonable costs and attorneys' fees from the other party in any such arbitration proceeding, and the losing party shall also be responsible for the arbitrator's and any separate arbitration and reporting fees.
Notwithstanding the above,
Executive
acknowledges and agrees that any violation of Section 9 of this
Agreement
will cause the
Bank and its Affiliates
irreparable harm as to which there may be no adequate legal remedy and therefore the
Bank and its Affiliates
shall be entitled to injunctive or other equitable relief in addition to any monetary damages deemed appropriate by the court, and that such action by the
Bank and its Affiliates
shall not be subject to arbitration.
Executive
further acknowledges and agrees that in the event of any violation of Section
9
, the
Bank and its Affiliates
shall cease to be obligated to provide any then-continuing benefit or payment to him or her under this Agreement and Executive further stipulates that the consideration as of then provided shall represent full and complete consideration for his or her obligations
hereunder
, including without limitation his or her full release of claims.
13.
Final and Binding/Entire Agreement.
This
Agreement
and the
Employment Agreement
sets forth the entire
agreement
between the parties and is intended to be final and binding upon them. It fully supersedes any and all prior agreements or understandings on the subjects addressed
herein
. This
Agreement
may only be amended by a written document signed by the parties or their duly authorized representatives which specifically states that it was intended as an amendment.
14.
Notice.
Any notice required or permitted to be given under this
Agreement
must be in writing and must be given in person or be sent by registered or certified mail to:
|
a)
|
Executive
at the address he or she has designated for his or her personnel files or any subsequent address identified by
Executive
in writing; and
|
|
b)
|
Employer
at: Attn: Chairman of the Board, 8460 Dr. ML King Ave., Covington, GA 30014
|
15.
Controlling Law.
This
Agreement
will be interpreted and enforced according to the laws of the State of
Georgia, except to the extent governed by the laws of the United States of America in which case federal laws shall govern
.
16.
Severability.
If any term, provision, covenant, or condition of this
Agreement
is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the
Agreement
shall remain in full force and effect and shall be in no way affected, impaired or invalidated.
17.
Acknowledgements.
Executive
acknowledges that it is the mutual intent of the
parties hereto
that the full release contained in this
Agreement
fully complies with the Age Discrimination in Employment Act ("
ADEA
") and the Older Workers Benefit Protection Act ("
OWBPA
"). Accordingly, this
Agreement
requires, and
Executive
acknowledges and agrees that: 1) the consideration provided to
Executive
under this
Agreement
exceeds the nature and scope of any consideration to which
Executive
would otherwise have been legally entitled to receive absent execution of this
Agreement
; 2) execution of this
Agreement
and the full release
herein
, which specifically includes a waiver of any claims under the
ADEA
, is
Executive
's knowing and voluntary act; 3)
Executive
is
hereby
advised to consult with an attorney prior to executing this
Agreement
; 4)
Executive
has had at least twenty-one (21) calendar days within which to consider this
Agreement
and his/her signature on this
Agreement
prior to the expiration of this twenty-one (21) day period (should
Executive
choose not to take the full period offered) constitutes an irrevocable waiver of said period or its remainder; 5) in the event
Executive
signs this
Agreement
,
Executive
has another seven (7) calendar days to revoke it by delivering a written notice of revocation to the addressee identified in the
Notice
provision above (Section
14)
, and this
Agreement
does not become effective until the expiration of this seven (7) day period; 6)
Executive
has read and fully understands the terms of this
Agreement
; and 7) nothing contained in this
Agreement
purports to release any of
Executive
's rights or claims under the
ADEA
that may arise from acts occurring after the date of the execution of this
Agreement
. The parties agree that changes, whether material or immaterial, do not restart the running of the 21-day period. To the extent that any provision of this
Agreement
is determined to be in violation of the
OWBPA
or
ADEA
, it should be severed or modified to comply with the OBWPA or
ADEA
, without affecting the validity or enforceability of any of the other terms or provisions of this
Agreement
.
18.
Compliance with Code Section 409A.
To the extent applicable, it is intended that the payment of benefits described in this
Agreement
comply with
Section 409A
of the Internal Revenue of 1986, as amended (the "
Code
"), and all guidance or regulations thereunder ("
Section 409A
"), including compliance with all applicable exemptions from
Section 409A
(e.g., the short-term deferral exception and the "two times" pay exemption applicable to severance payments). This
Agreement
will at all times be construed in a manner to comply with
Section 409A
and should any provision be found not in compliance with Section 409A, the
Executive hereby
agrees to any changes to the terms of this
Agreement
deemed necessary and required by legal counsel to bring the
Agreement
into compliance with
Section 409A
, including any applicable exemptions. The
Executive
irrevocably waives any objections he or she may have to any further changes that may be required by Section 409A. In no event will any payment that becomes payable pursuant to this
Agreement
that is considered "
deferred compensation
" within the meaning of
Section 409A
, if any, and does not satisfy any of the applicable exemptions under
Section 409A
, be accelerated or delayed in violation of Section 409A. For purposes of this
Agreement
, the benefits described in Section 1 of this
Agreement
shall not be paid or commence until the
Executive
incurs a "
separation from service
" as defined in Section 409A.
PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS. YOU AGREE THAT YOU RECEIVED VALUABLE CONSIDERATION IN EXCHANGE FOR ENTERING INTO THIS AGREEMENT AND THAT THE EMPLOYER ADVISED YOU IN WRITING TO CONSULT AN ATTORNEY PRIOR TO SIGNING THIS AGREEMENT. YOU PROMISE THAT NO REPRESENTATIONS OR INDUCEMENTS HAVE BEEN MADE TO YOU EXCEPT AS SET FORTH HEREIN, AND THAT YOU HAVE SIGNED THE SAME KNOWINGLY AND VOLUNTARILY.
YOU HAVE BEEN PROVIDED AT LEAST
TWENTY-ONE (21) DAYS
WITHIN WHICH TO CONSIDER THIS AGREEMENT AND WAIVE AND RELEASE ALL CLAIMS AND
RIGHTS INCLUDING BUT NOT LIMITED TO THOSE ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT. YOU SHALL HAVE
SEVEN (7) DAYS
WITHIN WHICH TO REVOKE THIS AGREEMENT AND THIS AGREEMENT SHALL NOT BECOME EFFECTIVE OR ENFORCEABLE UNTIL THAT REVOCATION PERIOD HAS EXPIRED. ANY SUCH REVOCATION MUST BE IN WRITING AND RECEIVED BY THE EMPLOYER, IN ACCORDANCE WITH THE NOTICE PROVISIONS SET FORTH IN SECTION 14, PRIOR TO THE END OF THE REVOCATION PERIOD.
IN WITNESS WHEREOF, the parties have executed this
Agreement
:
Executed this __________ day of _________________, 20___.
______________________________________
[NAME OF EMPLOYEE]
Executed this __________ day of _________________, 20___.
______________________________________
COMMUNITY FIRST BANCSHARES, INC.
By: ___________________________________
Title: __________________________________
Executed this __________ day of _________________, 2018.
______________________________________
NEWTON FEDERAL BANK
By: ___________________________________
Title: __________________________________