CANCELLATION AGREEMENT
THIS AGREEMENT is made and entered into
as of this 1st day of April, 2009 (the “Cancellation Date”) by and between
XXXXXXXX STATE BANK (the “Bank”); and D. XXXXX XXXXXXX, a resident of the State
of Georgia (the “Director”).
Recitals:
The Bank and the Director are parties
to that certain Director Retirement Agreement dated December 19, 2002, as
amended by the First Amendment thereto dated January 9, 2007 and the Second
Amendment thereto dated November 30, 2008 (the “Deferred Compensation
Agreement”).
The Bank and the Director desire to
cancel the Deferred Compensation Agreement to improve the capital position of
the Bank and to enhance the prospects of the Bank in the face of its current
financial challenges.
The Bank and the Director acknowledge
that the goal of improving the Bank’s financial position is in the best interest
of both parties.
For and in consideration of the
recitals set forth above and the mutual agreements set forth below, the parties
hereto agree as follows:
Statement of
Agreement:
1 Cancellation of Deferred
Compensation Agreement. This Agreement extinguishes the
Deferred Compensation Agreement and all of the Director’s rights thereunder
effective as of the Cancellation Date. The cancellation is made
pursuant to Section 7.2 of the Deferred Compensation Agreement; provided,
however, the Director further acknowledges and
agrees that Section 7.2 is hereby amended, effective immediately prior to the
Cancellation Date, to eliminate any obligation of the Bank to distribute to the
Director or any other party any benefit obligations accrued under the Deferred
Compensation Agreement as of the effective date of termination (or at any time
thereafter).
3. Further
Acknowledgements. The Director acknowledges that the Bank
shall have obligations to the Director or any other party under the terms of the
Deferred Compensation Agreement which survive its cancellation. The
Director further acknowledges that the Director has had an opportunity to review
documents, consult with counsel and make inquiries of Bank representatives prior
to entering into this Agreement and is entering into this Agreement of the
Director’s own free will.
4. Governing
Laws. This Agreement shall be construed, administered and
enforced according to the laws of the State of Georgia, to the extent not
preempted by federal law.
5. Successors. This
Agreement shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and permitted assigns of the parties.
6. Entire
Agreement. This Agreement expresses the entire understanding
and agreement of the parties with respect to the subject matter. As
of the Cancellation Date, the Deferred Compensation Agreement shall become null
and void.
7. Specific
Performance. In the event of any actual or threatened default
in, or breach of, any of the terms, conditions and provisions of this Agreement,
the party or parties who are thereby aggrieved shall have the right to specific
performance and injunction in addition to any and all other rights and remedies
at law or in equity, and all such rights and remedies shall be
cumulative.
IN WITNESS WHEREOF, the parties have
caused this Agreement to be executed on the 28th day of April,
2009.
XXXXXXXX STATE BANK
By: /s/ Xxxxxxx X.
Xxxxxx
Title: Chief Executive
Officer
DIRECTOR:
/s/ D. Xxxxx
Xxxxxxx
D. Xxxxx Xxxxxxx
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