BUSINESS PROTECTION AGREEMENT
Exhibit 10.8
This Business Protection Agreement (“Agreement”) made on June 18, 2007, by
and between Mid-America Bancshares, Inc. (“Company”), on the one hand, and Xxxxx Xxxxx
(“Executive”) on the other.
1. Background and Consideration. Executive is an employee of the Company and Bank of
the South (“Bank”). The Executive has requested that the Company and the Bank enter into
one certain Second Amended and Restated Change of Control Agreement (as the same may be hereafter
modified, amended and/or restated, the “Second Amended Agreement”) with the Executive. In
further consideration for the Company’s and Bank’s agreement to enter into the Second Amended
Agreement, the Executive is entering into this non-competition agreement for the benefit of the
Company and the Bank. The purpose of this Agreement is to assure that, during the herein described
Restricted Period, the Executive shall not actively engage or participate in a banking business
that is competitive with the Company in its market areas or solicit employees or customers during
the Restricted Period.
2. Active Participation in a Competing Business. The Executive shall not actively
participate or engage directly or indirectly in a Competing Business in the Protected Geographic
Area during the Restricted Period.
(a) The term “Competing Business” means any Person that is either (i) a bank or financial
institution holding company or (ii) a financial institution with deposits insured through any
agency of the federal government.
(b) The term “Protected Geographic Area” means each county in the
Nashville-Davidson-Murfreesboro MSA and all counties contiguous thereto.
(c) The term “Restricted Period” means the period starting on June 18, 2007, and ending on the
Termination Date.
(d) The term “Termination Date” means the earliest to occur of (i) the date of the Executive’s
voluntary retirement on or after his sixty-fifth birthday, (ii) August 31, 2010 (unless extended by
the Company as provided in paragraph 7 to August 31, 2011), or (iii) the existence or occurrence of
a Terminating Event.
(e) The term “Terminating Event” means the earliest to occur of (i) a material breach
of this Agreement by the Company that is not cured by the Company within fifteen calendar days
after the Executive delivers a written demand to the Company specifying the
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nature of the breach and demanding cure, (ii) a material breach of the Second Amended
Agreement (as the same may be amended in the future) by the Company that has not been timely cured
as provided in that contract, (iii) the date that the Company sends or delivers a written notice to
the Executive that it is terminating this Agreement, (iv) the date of any Secondary Acquisition, or
(v) the date that any Acquirer is liquidated, files a voluntary petition under the federal
Bankruptcy Code, is adjudicated or declared to be insolvent, or has a receiver appointed for it or
for all or any material part of its property.
(1) The term “Acquirer” means any Person who or which hereafter (i) acquires record or
beneficial ownership of more than 25% of the voting securities of the Company or any significant
subsidiary of the Company or (ii) acquires the ability to elect a majority of the membership of the
board of directors of the Company or any such material subsidiary. If at any time a voting trust
controls as much as 25% of the voting securities of the Company, then such voting trust shall be
deemed to be an Acquirer. The right to vote shares pursuant to a revocable proxy having an
expiration date of eleven months or less, and that was obtained in complete compliance with Rule
14A or Rule 14C as promulgated under the Exchange Act, shall not be deemed to be beneficial or
record ownership. For the purposes of this Agreement, a security is a “voting security” if it
either has the right to vote in the election of the issuer’s directors or if it is convertible at
any time into such a voting security.
(2) The term “Company” shall be understood to include the Company and each affiliate of the
Company on the date hereof, including the Bank and PrimeTrust Bank.
(3) The term “Person” means any individual, company, business trust, trust, voting trust,
partnership, limited liability company, or other type of entity, whether or not operated for
profit.
(4) The term “Secondary Acquisition” means the date that (i) any Acquirer signs an
agreement that would require, if it were a Tennessee corporation, approval of its voting securities
in some material respect pursuant to Tenn. Code Xxx. §§ 00-00-000, et seq., or pursuant to Tenn.
Code Xxx. §§ 00-00-000, et seq., or that would give rise to dissenter’s rights under Tenn. Code
Xxx. Tenn. Code Xxx. §§ 00-00-000, et seq., or that would result in a total or partial liquidation
or dissolution of the Acquirer, or (ii) any Person files (or is required to file) a Schedule 13D or
comparable schedule under the Exchange Act reflecting the acquisition of voting or dispositive
control of voting securities that do or could control as much as 25% or more of the voting power in
the election of directors of the Acquirer, or (iii) any Person acquires actual control of the
Acquirer. A beneficial owner, as that term is defined in 17 C.F.R. §240.13d-3, of a share of stock
or other security shall be deemed to be
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in control of such share or security. The Secondary Acquisition shall be deemed to occur on
the earliest of such dates.
3. No Solicitation. During the Restricted Period the Executive agrees that he will not
directly or indirectly solicit or attempt to solicit (a) any employees of the Company or any
affiliate of the Company to leave their employment or (b) any customers of the Company or any
affiliate of the Company to remove their business from the Company or any affiliate of the Company,
nor shall he solicit any of such employees or customers to participate in any manner in a Competing
Business. Solicitation prohibited under this paragraph includes solicitation by any means,
including, without limitation, meetings, letters or other mailings, telephonic and electronic
communications of any kind, internet communications, and generalized advertisements in the
newspaper designed to target customers and/or employees of the Company or any affiliate of the
Company.
4. Nondisclosure. Executive shall use his reasonable best efforts to safeguard the
confidentiality of material, non-public proprietary or confidential information of the Company and
its affiliates. This non-disclosure obligation shall continue for a period of fifty years after
termination of Executive’s employment or for such longer period as shall be required by law, rule
or regulation.
5. Payments to the Executive.
(a) Payments During or After the Restricted Period. The Company shall pay the
Executive the greater of (i) the Executive’s current or future monthly base salary or (ii) $10,000
per month for each full or partial month of the Restricted Period or such longer time as shall be
provided herein. To the extent that Executive’s current or future monthly base salary, or the
amount of any compensation paid monthly to the Executive for consulting services (“other
compensation”), equals or exceeds $10,000 per month, then the Company or the Bank shall not be
required to make any payment under this Agreement. If the base salary or other compensation is ever
less than $10,000 per month, then the Company or the Bank shall pay the Executive, in addition to
the base salary or other compensation, the difference between the base salary and $10,000 per
month. If the Expiration Date is extended by the Company as provided in paragraph 7, then the
payments shall continue for the entire Restricted Period, as so extended.
(b) Continuation of Payments. Unless the parties otherwise agree in writing,
the Company shall continue to make payments as specified above in subparagraph 5(a) until the
earlier of (i) the date of the Executive’s voluntary retirement on or after his sixty-fifth
birthday, (ii) until May 31, 2010 or, if the Restricted Period is extended by the Company as
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Exhibit 10.8
provided in paragraph 7, then until May 31, 2011, (iii) until the date that is one hundred
eighty days after the Company sends or delivers a written notice to the Executive that it is
terminating this Agreement, or (iv) until the date that a Secondary Acquisition occurs. However, it
is expressly agreed that the payments required by this Agreement shall continue until at least May
31, 2010, regardless of the Termination Date, except if the Terminating Event is a Secondary
Acquisition (in which event, payments shall cease as of the first day of the calendar month
following the date that the Secondary Acquisition is deemed to occur).
(c) Frequency of Payments. All payments to the Executive shall be made in accordance
with the Bank’s usual payroll practices on the date hereof. If the Company breaches its duty to pay
the Executive hereunder beyond any cure period, or breaches such duty more than three times during
the term of the Restricted Period, and Executive does not waive such breach(es) in writing, then
the Company shall be required to pay the entire unpaid balance of such payments to the Executive in
one lump sum. The Company agrees that prejudgment interest is appropriate to the Executive for any
such breach(es) if the Company becomes obligated to make a lump-sum payment. If the Company fails
to make any payment when due, then the Bank shall make such payments immediately upon demand.
(d) Suspension of Payments. The Company may suspend payments to the Executive during
any period that the Executive is actively engaged in a Competing Business in the Protected
Geographic Area during the Restricted Period. The Company shall be entitled to credit for, and may
recover, any payments made to the Executive while the Executive was in material, uncured violation
of this Agreement.
6. Protected Activities and Conduct.
(a) Nothing in this Agreement shall prevent the Executive from accepting employment from a
Competing Business, after cessation of the Executive’s employment with the Company or the Bank but
during the Restricted Period, outside the Protected Geographic Area, as long as the Executive will
not, either directly or indirectly, be actively engaged as an employee or other representative or
agent of the Competing Business within the Protected Geographic Area or have any responsibilities
or authority whatsoever for all or any part of the Competing Business’ operations or activities
within the Protected Geographic Area.
(b) The terms “actively engaged,” “active engagement,” and/or “active participation”
shall be given their usual and customary meanings, but they shall not include any occasional or
infrequent giving of advice or counsel to colleagues or associates of the Executive. This
limitation is intended to assure the Executive that he will not be in violation of this Agreement
by infrequent and casual conduct. In addition, without violating this
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Agreement, and without being deemed to be “actively engaged” or actively participating in a
Competing Business, the Executive may own an interest not to exceed 2% of the total equity interest
in any entity with securities registered under Section 12 of the Exchange Act whose equity
securities are listed on a national securities exchange (even if such entity is a Competing
Business). In addition, the Executive may lend his own personal funds on any basis that he sees fit
and, as a result thereof, shall not be deemed to be engaged in the banking business or to be
engaged in a Competing Business.
7. Company’s Right to Extend. Prior to the date of a Secondary Acquisition or any
other Termination Date, and so long as the Company is not in default under this Agreement or the
Second Amended Agreement, the Company may extend the Expiration Date of until August 31, 2011, by
written notice delivered to Executive if such notice is delivered on or prior to June 1, 2010, but
not otherwise. The term “Company” in this paragraph includes the Acquirer. The extension of the
Expiration Date shall not affect any of the other events or circumstances that give rise to a
Termination Date.
8. Equitable Relief. The Executive acknowledges that the breach or threatened breach
of any of the provisions of his non-disclosure, non-competition, and non-solicitation agreements
will cause immediate irreparable harm to the Company and cannot be adequately compensated by the
payment of damages. Accordingly, the Executive covenants and agrees that the Company, in addition
to any other rights or remedies which it may have, will be entitled to such equitable and
injunctive relief as may be available from any court of competent jurisdiction to restrain the
Executive from breaching or threatening to breach any of the provisions of this paragraph without
posting bond or other surety. Such right to obtain injunctive relief may be exercised at the option
of the Company in addition to, concurrently with, prior to, after, or in lieu of the exercise of
any other rights or remedies which the Company may have as a result of such breach or threatened
breach, including the recovery of monetary damages.
9. Executive Acknowledgment. The Executive specifically acknowledges and agrees that
he has negotiated the foregoing restrictions on competition with the Company and that they are fair
and reasonable to him so long as the Company has performed and continues to perform its obligations
to Executive as specified in this Agreement and in the Second Amended Agreement.
10. Notices. All notices, requests, demands and other communications provided
for by this Agreement shall be in writing and shall be sufficiently given if and when mailed in the
continental United States by registered or certified mail, or personally delivered to the
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Exhibit 10.8
party entitled thereto, at the address stated below or to such changed address as the
addressee may have given by a similar notice:
To the Company:
|
Mid-America Bancshares, Inc. | |
| Attn: Chairman of the Personnel Committee | ||
| 0000 Xxxxxxx Xxxxx Xxxx | ||
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||
To the Executive:
|
Xxxxx Xxxxx | |
| <Address on File> |
Notice sent to the last known address of Executive as contained in the Company’s or Bank’s payroll
records shall be deemed to be sent to the proper address unless the Executive has furnished the
Company or the Bank a written notice of a different address.
11. Successors; Binding Agreement. For purposes of this paragraph of this Agreement,
“Company” shall mean the Company, as defined above, and any successor to its business and/or
assets. This Agreement shall inure to the benefit of and be enforceable by the Executive’s personal
or legal representatives, executors, administrators, successors, heirs, distributees, devisee and
legatees. If the Executive should die while any amount would still be payable to his hereunder if
he had continued to live, all such amounts, except to the extent otherwise provided under this
Agreement, shall be paid in accordance with the terms of this Agreement to his devisee, legatee or
other designee, or if there be no such designee, to the Executive’s estate.
12. Modification, Waiver or Discharge. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is agreed to in
writing signed by the executive and an authorized representative of the Company. No waiver by
either party hereto at anytime of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party shall be deemed a
waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent
time. No agreements or representations, oral or otherwise, express or implied, with respect to the
subject matter hereof have been made by either party which are not expressly set forth in this
Agreement; provided, however, that this Agreement shall not supersede or in any way limit the
right, duties or obligations that the Executive or the Company may have under any other written
agreement between such parties, under any employee pension benefit plan or employee welfare benefit
plan as defined under the Employee Retirement Income Security Act of 1974, as amended, and
maintained by the
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Exhibit 10.8
Company, or under any established personnel practice or policy applicable to the Executive. No
employment, consulting or comparable contract shall be deemed to modify or supersede this
Agreement; rather, this Agreement may not be impliedly amended, superseded or terminated. This
Agreement can be terminated only by a written contract that expressly states that this Agreement is
terminated, amended, superseded, canceled or otherwise modified.
13. Governing Law. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Tennessee.
14. Validity. The invalidity or unenforceability of any provision of this Agreement
shall not effect the validity or enforceability of any other provision of this Agreement, which
latter shall remain in full force and effect.
15. Jurisdiction and Venue; Waiver of Jury Trial. This Agreement has been executed and
delivered in Mt. Juliet, Xxxxxx County, Tennessee, and any action or claim related to or involving
this Agreement filed by any of the Company and/or the Executive shall be brought in the Circuit or
Chancery Court for Xxxxxx County, Tennessee. Executive and Company, after consultation with
counsel, have elected to WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY and hereby consent to a trial
by the Court sitting without a jury.
16. Legal Fees. The Company shall pay to Executive all reasonable legal fees and
expenses incurred by the Executive as a result of a material uncured breach of this Agreement by
the Company. The Executive shall pay to Executive all reasonable legal fees and expenses incurred
by the Company as a result of a material uncured breach of this Agreement by the Executive. The
Executive shall be deemed to have cured a breach of the non-competition portion of this Agreement
if he ceases to be actively engaged in a Competing Business after the Company delivers a written
demand to him to do so.
17. General Terms and Provisions. This Agreement shall be read in conjunction
with, but shall constitute a separate and different agreement from, the Executive’s Second Amended
and Restated Change of Control Agreement with the Company. Descriptive paragraph, subparagraph,
and/or section headings contained in this Agreement are for convenience only and shall not control
or affect the meaning or construction of any provision hereof. This Agreement may be executed in
one or more counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same contract. The parties shall deal with each other
fairly and in good faith. The term “affiliate” shall have the meaning ascribed thereto in 17 C.F.R.
240.12b-2; the concept of “beneficial ownership” shall have the meaning ascribed thereto in 17
C.F.R. 13d-3, inclusive of either
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or
both of dispositive and voting control; and the term “Exchange Act” means the Securities
Exchange Act of 1934, as amended.
<Continued on next page.>
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Exhibit 10.8
AS SET FORTH ABOVE, AFTER CONSULTATION WITH COUNSEL EXECUTIVE AND COMPANY, HAVE ELECTED TO
WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY AND HEREBY CONSENT TO A TRIAL BY THE COURT SITTING
WITHOUT A JURY WITH RESPECT TO ANY ACTION OR PROCEEDING RELATED TO OR INVOLVING THIS AGREEMENT.
IN WITNESS WHEREOF, this Agreement has been executed and delivered to become effective as
of the date first above written.
| MID-AMERICA BANCSHARES, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Xxxx X. Xxxxx, Chairman | ||||
| /s/ Xxxxx Xxxxx | ||||
| XXXXX XXXXX, Individually | ||||
| BANK OF THE SOUTH |
||||
| By: | /s/ Xxxxx X. Short | |||
| Xxxxx X. Short, President | ||||
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