EXHIBIT 10.4 - CHANGE IN CONTROL AGREEMENT WITH XXXXXX X. XXXXXXX DATED
FEBRUARY 20, 1996
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT made this 20th day of February, 1996 between THE
SAVANNAH BANCORP, INC., a Georgia Corporation (hereinafter, the "Company"), and
XXXXXX X. XXXXXXX, an employee of the Company or one or more of its subsidiaries
(hereinafter, the "Employee").
WHEREAS, the Employee is employed by the Company and has agreed to
continue to work for the Company on the terms and conditions set forth
hereinafter;
WHEREAS, the Company and the Employee agree that this Agreement shall
be relied on by each party in continuing the employment relationship described
herein and that the execution of this Agreement is a condition precedent to the
Employee's continued employment with the Company.
NOW, THEREFORE, for and in consideration of the premises and promises
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company and the Employee hereby
agree as follows:
1. Termination. (a) If there occurs a Change In Control (hereinafter
defined) during the Employee's employment with the Company and the Employee's
employment with the Company or a Successor Entity (hereinafter defined) is
terminated by the Company or Successor Entity Without Cause (hereinafter
defined) during the one (1) year period immediately following the date of the
Change In Control, then, notwithstanding such termination, the Employee shall
continue to receive compensation at that rate which the Employee was entitled to
receive as of the date of Change In Control for the one (1) year period
immediately following the date the Employee's employment with the Company or a
Successor Entity is terminated by the Company or a Successor Entity Without
Cause.
(b) If there occurs a Change in Control during the Employee's
employment with the Company and the Employee voluntarily terminates his
employment with the Company or a Successor Entity during the one (1) year period
immediately following the date of the Change in Control, then, notwithstanding
such termination, the Employee shall continue to receive compensation at that
rate which the Employee was entitled to receive as of the date of the Change In
Control for the remainder of the one (1) year period immediately following the
date of the Change in Control.
2. Involuntary Reduction in Benefits. If there occurs a Change In
Control (hereinafter defined) during the Employee's employment with the Company
and the
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Employee's rate of compensation is decreased by the Company or a Successor
Entity (hereinafter defined) from that rate which the Employee was entitled to
receive as of the date of the Change In Control without the Employee's written
consent during the one (1) year period immediately following the date of the
Change In Control, then, notwithstanding such reduction, the Employee shall
continue to receive compensation at that rate which the Employee was entitled to
receive as of the date of Change In Control for the one (1) year period
immediately following the date the Employee's rate of compensation is decreased
by the Company or a Successor Entity.
3. Change In Control. A "Change In Control" is defined as (i) the sale
of all, or a substantial portion of, the assets of the Company, (ii) a merger or
other reorganization whereby the Company is not the surviving entity, or (iii) a
change in control of the Company as defined or determined by the Office of the
Comptroller of the Currency and whether by acquisition of stock or assets of the
Company. A Change in Control shall be deemed to have occurred on the final
closing date of the transaction, or series of transactions, resulting in the
Change in Control.
4. Successor Entity. A "Successor Entity" is defined as a person or
entity, other than the Company, which acquires all, or substantially all of, the
stock or assets of the Company as a result of a transaction or series of
transactions which resulted in a Change In Control.
5. Without Cause. The Employee will be deemed to have been
terminated Without Cause if he is terminated for any reason
other than:
(a) the Employee being convicted of, being found guilty of,
pleading guilty to, pleading nolo contendere to, or taking
first offender treatment to a felony or any crime involving
moral turpitude; or
(b) the Employee engaging in any misappropriation,
embezzlement or other intentional fraud upon the Company.
6. Disclosure by Company. The Employee agrees that the Company may
disclose the covenants contained in this Agreement to any person or entity who,
at any time, considers purchasing all, or substantially all of, the assets of
the Company or a majority of the issued and outstanding stock of the Company.
7. Breach. In the event a breach of this Agreement occurs and the
non-breaching party retains an attorney for enforcement of his rights hereunder
or other action (whether suit be brought or not), the non-breaching party shall
be entitled to reimbursement on demand of all costs and expenses associated
therewith, including reasonable attorney's fees.
8. Entire Agreement; Modification; Binding Effect.. This Agreement
constitutes the entire and complete agreement between the parties hereto and
supersedes any prior oral or written agreement between the parties with respect
to the obligations and covenants
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contemplated hereunder. It is expressly agreed that there are no verbal
understandings or agreements which in any way change the terms, covenants, and
conditions herein set forth, and that no modification of this Agreement shall be
effective unless made in writing and duly executed by all parties hereto. This
Agreement shall inure to the benefit of and be binding upon the respective
assigns, successors, heirs, estates, and legal and personal representatives of
the parties hereto.
IN WITNESS WHEREOF, the Company and the Employee have executed this
Agreement as set forth below.
THE COMPANY:
THE SAVANNAH BANCORP, INC.
By: /s/ Xxxxxx X. Xxxxx
Attest: /s/ Xxxxxx X. Xxxxxxxxxx
[SEAL]
THE EMPLOYEE:
/s/ Xxxxxx X. Xxxxxxx (L.S.)
Xxxxxx X. Xxxxxxx
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