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.
(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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Exhibit 10.8
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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Exhibit 10.8
in control of such share or security. The Secondary Acquisition shall be deemed to occur on
the earliest of such dates.
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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).
(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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Exhibit 10.8
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.
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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.
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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.
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.
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Exhibit 10.8
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.
MID-AMERICA BANCSHARES, INC. |
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By: | /s/ Xxxx X. Xxxxx | |||
Xxxx X. Xxxxx, Chairman | ||||
/s/ Xxxxx Xxxxx | ||||
XXXXX XXXXX, Individually | ||||
BANK OF THE SOUTH |
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By: | /s/ Xxxxx X. Short | |||
Xxxxx X. Short, President | ||||
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