1
EXHIBIT 10.1
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (this "Agreement"), dated this 28th
day of December, 1998 by and between Community Bancshares, Inc. a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx, Xx. (the "Executive").
WITNESSETH:
WHEREAS, the Company wished to assure itself and its key employees of
continuity of management and objective judgement in the event of any actual or
contemplated Change in Control of the Company, and the Executive is a key
employee of the Company and is an integral part of management of the Company
(for purposes hereof employment with any present or future parent or subsidiary
corporation of the Company shall be considered employment by the Company); and
WHEREAS, this Agreement is not intended to materially alter the
compensation and benefits that the Executive could reasonably expect to receive
in the absence of a Change in Control of the Company, and this Agreement
accordingly will be operative only upon circumstances relating to any actual or
anticipated change in control of the Company.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, the parties hereby agrees as follows:
I. OPERATION OF AGREEMENT
This Agreement shall be effective immediately upon its execution by the
parties hereto, but anything in this Agreement to the contrary notwithstanding,
neither the Agreement nor any provision hereof shall be operative unless, during
the term of this Agreement, there has been a Change in Control of the Company
during the term of this Agreement, all of the provisions hereof shall become
operative immediately.
II. TERM OF AGREEMENT
The term of this Agreement shall be for an initial three (3) year
period commencing on the date hereof, and shall be renewable at the end of the
first year of such initial three (3) year period and annually thereafter, for an
additional one (1) year period following the initial three (3) year period and
prior extensions thereof in the sole discretion of the Compensation Committee
and upon such terms and conditions as the Compensation Committee may authorize
at such time.
III. DEFINITIONS
1. "BOARD" or "BOARD OF DIRECTORS" - the Board of Directors of
the Company.
1. "CAUSE" - either
(i) any act that constitutes, on the part of the
Executive, (A) fraud, dishonesty, felony or gross malfeasance of duty,
and (B) that directly results in material injury to the Company; or
(ii) conduct by the Executive in his office with the
Company that is grossly inappropriate and demonstrably likely to lead
to material injury to the Company, as determined by the Board acting
reasonably and in good faith;
provided, however, that in this case of (ii) above, such conduct shall not
constitute Cause unless the Board shall have delivered to the Executive notice
setting forth with specifically (A) the conduct deemed to qualify as Cause, (B)
reasonable action that would remedy such objection, and (C) a reasonable time
(not less than thirty (30 days) within which the Executive may take such
remedial action, and the Executive shall not have taken such specified remedial
action within such specified reasonable time.
2
3. "CHANGE IN CONTROL" - Either
(i) the acquisition, directly or indirectly, by any
"person" (as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1937, as amended) within any twelve (12)
month period of securities of the Company representing an aggregate of
twenty percent (20%) or more of the combined voting power of the
Company's then outstanding securities; or
(ii) during any period of two consecutive years,
individuals who at the beginning of such period constitute the Board,
cease for any reason to constitute at least a majority thereof, unless
the election of each new director was approved in advance by a vote of
at least a majority of the directors then still in office who were
directors at the beginning of the period; or
(iii) consummation of (a) a merger, consolidation or other
business combination of the Company with any other "person" (as such
term is used in Section 13(d) and 14(d) of the Securities Exchange Act
of 1934, as amended) or affiliate thereof, other than a merger,
consolidation of business combination which would result in the
outstanding common stock of the Company immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into common stock of the surviving entity or a parent or
affiliate thereof) at least sixty (60)% of the outstanding common stock
of the Company or such surviving entity or parent or affiliate thereof
outstanding immediately after such merger, consolidation or business
combination, or (b) a plan of complete liquidation of the Company or an
agreement for the sale of disposition by the Company of all or
substantially all of the Company's assets; or
(iv) the occurrence of any other event or circumstances
which is not covered by (i) through (iii) above which the Board
determines affects control of the Company and, in order to implement
the purposes of this Agreement as set forth above, adopts a resolution
that such event or circumstance constitutes a Change in Control of the
purposes of this Agreement.
4. "CODE" - the Internal Revenue Code of 1986, as amended.
5. "COMPENSATION COMMITTEE" - the Executive Compensation
Committee of the Board of Directors of the Company, or any successor committee.
6. "DISABILITY" - the Executive's probable and expected inability
as a result of physical or mental incapacity to substantially perform his duties
for the Company on a full time basis for a period of six (6) months. The
determination of whether the Executive suffers a Disability shall be made by a
physician acceptable to both the Executive (or his personal representative) and
the Company.
7. "EXCESS SEVERANCE PAYMENT" - the term "Excess Severance
Payment" shall have the same meaning as the term "excess parachute payment"
defined in Section 280G(b)(1) of the Code.
8. "INVOLUNTARY TERMINATION" - termination of the Executive's
employment by the Executive following a Change in Control which, in the
reasonable judgement of the Executive, is due to (i) a change of the Executive's
responsibilities, position (including status, office, title, reporting
relationships or working conditions), authority or duties (including changes
resulting from the assignment to the Executive of any duties inconsistent with
his positions, duties or responsibilities as in effect immediately prior to the
Change in Control); or (ii) a reduction in the Executive's compensation or
benefits as in effect immediately prior to the Change in Control or (iii) a
forced relocation of the Executive's primary place of employment to a place more
than fifty (50) miles from the Executive's primary place of employment
immediately prior to the Change in Control. Involuntary Termination does not
include retirement (including early retirement) within the meaning of the
Company's retirement plan, or death or Disability of the executive.
9. "PRESENT VALUE" - the term "Present Value" shall have the same
meaning as provided in Section 280G(d)(4) of the Code.
3
10. "SEVERANCE PAYMENT" - the term "Severance Payment" shall have
the same meaning as the term "parachute payment" defined in Section 280G(b)(2)
of the Code.
11. "REASONABLE COMPENSATION" - the term "Reasonable Compensation"
shall have the same meaning as provided in Section 280G(b)(4) of the Code.
IV BENEFITS UPON TERMINATION FOLLOWING A CHANGE IN CONTROL
1. TERMINATION - The Executive shall be entitled to, and the
Company shall pay or provide to the Executive, the benefits described in Section
2 below if (a) a Change in Control occurs during the term of this Agreement, and
(b) the Executive's employment is terminated within thirty (30) months following
the Change in Control either (i) by the Company (other than for Cause or by
reason of the Executive's death or Disability) or (ii) by the Executive pursuant
to Involuntary Termination; provided, however, that if:
(a) during the term of this Agreement there is a public
announcement of a proposal for a transaction that, if consummated, would
constitute a Change in Control or the Board receives and decides to explore an
expression of interest with respect to a transaction which, if consummated,
would lead to a Change in Control (either transaction being referred to herein
as the "Proposed Transaction"); and
(b) the Executive's employment is thereafter terminated by the
Company other than for Cause or by reason of the Executive's death or
Disability; and
(c) the Proposed Transaction is consummated within one (1) year
after the date of termination of the Executive's employment.
then, for the purposes of this Agreement, a Change in Control shall be
deemed to have occurred during the term of this Agreement and the termination of
the Executive's employment shall be deemed to have occurred within two (2) years
following a Change in Control.
2. BENEFITS TO BE PROVIDED - If the Executive becomes eligible
for benefits under Section 1 above, the Company shall pay or provide to the
Executive the benefits set forth in this Section 2.
(a) SALARY - The Executive will continue to receive his current
salary (subject to withholding of all applicable taxes and any amounts referred
to in Section 2(c) below) for a period of thirty (30) months from his date of
termination in the same manner as it was being paid as of the date of
termination; provided, however, that the salary payments provided for hereunder
shall be paid in a single lump sum payment, to be paid not later than thirty
(30) days after his termination of employment; provided further, that the amount
of such lump sum payment shall be determined by taking the salary payments to be
made and discounting them to their Present Value. For purposes hereof, the
Executive's "current salary" shall be the highest rate in effect during the
six-month period prior to the Executive's termination.
(b) BONUSES - The Executive shall receive payments from the
Company for the thirty (30) months following the month in which this employment
is terminated in an amount for each such month equal to one-twelfth of the
average of the bonuses earned by him for the two calendar years immediately
preceding the year in which such termination occurs. Any bonus amounts that the
Executive had previously shall not be affected by this provision, other than to
serve as a measurement for this portion of the severance benefit. The bonus
amounts determined herein shall be paid in a single lump sum payment, to be paid
not later than 30 days after termination of employment; provided, further, that
the amount of such lump sum payment shall be determined by taking the bonus
payments (as of the payment date) to be made and discounting them to their
Present Value.
(c) HEALTH AND LIFE INSURANCE COVERAGE - The health and life
insurance benefits coverage provided to the Executive at his date of termination
shall be continued at the same level and in the same manner as if his employment
had not terminated (subject to the customary changes in such coverages if the
Executive retires or reaches age 65 or similar events), beginning on the date of
such termination and ending on the date thirty (30) months from the date of such
termination. Any additional coverages the Executive had at termination,
including dependent coverage, will also
4
be continued for such period at the same level and on the same terms as provided
to the Executive immediately prior to his termination, to the extent permitted
by the applicable policies or contract. Any costs Executive was paying for such
coverages at the time of termination shall be paid by the Executive by separate
check payable to the Company each month in advance. If the terms of any benefit
plan referred to in this Section do not permit continued participation by the
Executive, then the Company will arrange for other coverage at its expense
providing substantially similar benefits as it can find for other officers in
similar positions.
(d) EMPLOYEE RETIREMENT PLANS - To the extent permitted by the
applicable plan, the Executive will be fully vested in and will be entitled to
continue to participate, consistent with past practices, in all employee
retirement plans maintained by the Company in effect as of his date of
termination. The Executive's participation in such retirement plans shall
continue for a period of thirty (30) months from the date of termination of his
employment (at which point he will be considered to have terminated employment
within the meaning of the plans) and the compensation payable to the executive
under (a) and (b) above shall be treated (unless otherwise excluded) as
compensation under the plan. If full vesting and continued participation in any
plan is not permitted, the Company shall pay to the Executive and, if
applicable, his beneficiary, a supplemental benefit equal to the Present Value
on the date of termination of employment of the excess of (i) the benefit the
Executive would have been paid under such plan if he had been fully vested and
had continued to be covered for the 30-month period as if the Executive had
earned compensation described under (a) and (b) above and had made contributions
sufficient to earn the maximum matching contribution, if any, under such plan
(less any amounts he would have been required to contribute), over (ii) the
benefit actually payable to or on behalf of the Executive under such plan. For
purposes of determining the benefit under (i) in the preceding sentence,
contributions deemed to be made under a defined contribution plan will be deemed
to be invested in the same manner as the Executive's account under such plan at
the time of termination of employment. The Company shall pay such supplemental
benefits (if any) in a lump sum.
(e) CAREER COUNSELING - The Company will provide career counseling
and out placement services on an individual basis to the Executive as the
Company deems appropriate and for a reasonable period following the Executive's
termination of employment; provided, however, that the Company's obligation to
provide such services shall terminate at such time, if any, as the cost of such
services exceeds $5,000.
(f) EFFECT OF LUMP SUM PAYMENT - The lump sum payment under (a) or
(b) above shall not alter the amounts the Executive is entitled to receive under
the benefit plans described in (c) and (d) above. Benefits under such plans
shall be determined as if the Executive had remained employed and received such
payments over a period of thirty (30) months.
(g) EFFECT OF DEATH OR RETIREMENT - The benefits payable or to be
provided under this Agreement shall continue in the event of the Executive's
death and shall be payable to his estate or named beneficiary. The benefits
payable or to be provided under this Agreement shall cease in the event of the
Executive's election to commence retirement benefits under the Company's
retirement plan.
(h) LIMITATION ON AMOUNT - Notwithstanding anything in this
Agreement to the contrary, any benefits payable or to be provided to the
Executive by the Company or its affiliates, whether pursuant to this Agreement
or otherwise, which are treated as Severance Payments shall be modified or
reduced in the manner provided in (h) below to the extent necessary so that the
benefits payable or to be provided to the Executive under this Agreement that
are treated as Severance Payments, as well as any payments or benefits provided
outside of this Agreement that are so treated, shall not cause the Company to
have paid an Excess Severance Payment. In computing such amount, the parties
shall take into account all provisions of Internal Revenue Code Section 280G,
including making appropriate adjustments to such calculation for amounts
established to be Reasonable Compensation.
(i) MODIFICATION OF AMOUNT - In the event that the amount of any
Severance Payments that would be payable to or for the benefit of the Executive
under this Agreement must be modified or reduced to comply with this Section 2,
the Executive shall direct which Severance Payments are to be modified or
reduced; provided, however, that no increase in the amount of any payment or
change in the timing of the payment shall be made without the consent of the
Company.
5
(j) AVOIDANCE OF PENALTY TAXES - This Section 2 shall be
interpreted so as to avoid the imposition of excise taxes on the Executive under
Section 4999 of the Code or the disallowance of a deduction to the Company
pursuant to Section 280G(a) of the Code with respect to amounts payable under
this Agreement or otherwise.
(k) ADDITIONAL LIMITATION - In addition to the limits otherwise
provided in this Section 2, to the extent permitted by law, the Executive may in
his sole discretion elect to reduce any payments he may be eligible to receive
under this Agreement to prevent the imposition of excise taxes on the Executive
under Section 4999 of the Code.
(l) NO OBLIGATION TO FUND - The agreement of the Company (or its
successor) to make payments to the Executive hereunder shall represent solely
the unsecured obligation of the Company (and its successor), except to the
extent the Company (or its successors) in its sole discretion elects in whole or
in part to fund its obligations under this Agreement pursuant to a trust
arrangement or otherwise.
VI. MISCELLANEOUS
1. CONTRACT NON-ASSIGNABLE - The parties acknowledgment that this
Agreement has been entered into due to, among other things, the special skills
of the Executive, and agree that this Agreement may not be assigned or
transferred by the Executive, in whole or in part, without the prior written
consent of the Company. Any business entity succeeding to all or substantially
all of the business of the Company by purchase, merger, consolidation, sale of
assets or otherwise, shall be bound by this Agreement.
2. OTHER AGENTS - Nothing in this Agreement is to be interpreted
as limiting the Company from employing other personnel on such terms and
conditions as may be satisfactory to the Company.
3. NOTICES - All notices, request, demands and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given if delivered or seven days after mailing if
mailed, first class, certified mail, postage prepaid:
To the Company: Community Bancshares, Inc.
X.X. Xxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
To the Executive: Xxxxxxx X. Xxxxxxxx, Xx.
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxx 00000
Any party may change the address to which notices, request, demands and other
communications shall be delivered or mailed by giving notice thereof to the
other party in the same manner provided herein.
4. PROVISIONS SEVERABLE - If any provision or covenant, or any
part thereof, of this Agreement should be held by any court to be invalid,
illegal or unenforceable, either in whole or in part, such invalidity,
illegality or unenforceability shall not affect the validity, legality or
enforceability of the remaining provisions or covenants, or any part thereof, of
this Agreement, all of which shall remain in full force and effect.
5. WAIVER - Failure of either party to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted in this Agreement or of the future performance of any such
term or condition or of any other term or condition of this Agreement, unless
such waiver is contained in a writing signed by the party making the waiver.
6. AMENDMENTS AND MODIFICATIONS - This Agreement may be amended
or modified only by a writing signed by both parties hereto, which makes
specific reference to this Agreement.
7. GOVERNING LAW - The validity and effect of this Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Alabama.
6
8. ARBITRATION OF DISPUTES; EXPENSES - The parties agree that all
disputes that may arise between them relating to the interpretation or
performance of this Agreement, including, matters relating to any funding
arrangements for the benefits provided under this Agreement, shall be determined
by binding arbitration through an arbitrator approved by the American
Arbitration Association or other arbitrator mutually acceptable to the parties.
The award of the arbitrator shall be final and binding upon the parties and
judgment upon the award rendered may be entered in any court having
jurisdiction. In the event the Executive incurs legal fees and other expenses in
seeking to obtain or to enforce any such rights or benefits through settlement,
arbitration or otherwise, the Company shall promptly pay the Executive's
reasonable legal fees and expenses incurred in enforcing this Agreement. Except
to the extent provided in the preceding sentence, each party shall pay its own
legal fees and other expenses associated with the arbitration, provided that the
fee for the arbitrator shall be shared equally.
9. INDEMNITY - The Executive shall be entitled to the benefits of
the indemnity currently applicable to the Executive, if any, as provided by the
Company's articles of incorporation or bylaws. Any changes to the articles of
incorporation or bylaws reducing the indemnity granted to officers shall not
affect the rights granted hereunder. The Company may not reduce these indemnity
benefits confirmed to the Executive hereunder without the written consent of the
Executive.
10. TERMINATION OF PRIOR AGREEMENTS - The Executive hereby agrees
to a mutual termination, effective as of the effective date of this Agreement,
of any prior existing change in control agreements (by whatever name), providing
benefits to the Executive upon a termination of employment following a Change in
Control of the Company, to which he and the Company are parties, and as to such
prior agreements, if any, the Executive releases all claims, rights and
entitlements.
11. REGULATORY APPROVALS - The Agreement, and the rights and
obligations of the parties hereto, shall be subject to approval of the same by
any and all regulatory authorities having jurisdiction over the Company, to the
extent such approval is required by law, regulation, or order.
12. REGULATOR INTERVENTION - Notwithstanding any term of this
Agreement to the contrary, this Agreement is subject to the following terms and
conditions:
(a) The Company's obligations to provide compensation or
other benefits to Executive under this Agreement may be suspended if the Company
has been served with a notice of charges by the appropriate federal banking
agency under provisions of Section 8 of the Federal Deposit Insurance Act (12
U.S.C. 1818) directing the Company to cease making payments required hereunder;
provided, however, that
(i) The Company shall seek in good faith with
its best efforts to oppose such notice of charges as to which
there are reasonable defenses;
(ii) In the event the notice of charges is
dismissed or otherwise resolved in a manner that will permit
the Company to resume its obligations to provide compensation
or other benefits hereunder, the Company shall immediately
resume such payments and shall also pay Executive the
compensation withheld while the contract obligations were
suspended, except to the extent precluded by such notice; and
(iii) During the period of suspension, the vested
rights of the contracting parties shall not be affected,
except to the extent precluded by such notice.
(b) The Company's obligations to provide compensation or
other benefits to Executive under this agreement shall be terminated to the
extent a final order has been entered by the appropriate federal banking agency
under provisions of Section 8 of the Federal Deposit Insurance Act (12 U.S.C.
1818) directing the Company not to make the payments required hereunder;
provided, however, that the vested rights of the contracting parties shall not
be affected by such order, except to the extent precluded by such order.
7
(c) The Company's obligations to provide compensation or
other benefits to Executive under this Agreement shall be terminated or limited
to the extent required by the provisions of any final regulation or order of the
Federal Deposit Insurance Company promulgated under Section 18(k) of the Federal
Deposit Insurance Act (12 U.S.C. 1828(k)) limiting or prohibiting any "golden
parachute payment" as defined therein, but only to the extent that the
compensation or payments to be provided under this Agreement are so prohibited
or limited.
(d) Notwithstanding the foregoing, the Company shall not
be required to make any payments under this Agreement prohibited by law.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its duly authorized officers and the Executive has
hereunto set his hand, as of the date and year first above written.
COMMUNITY BANCSHARES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
-----------------------------
Title: Chairman, President and Chief
Executive Officer
Attest: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------
Title: Secretary
(CORPORATE SEAL)
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxxx, Xx.
----------------------------
(Seal)
-----------------------
