AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the ______
of April, 1996, by and between the undersigned, ____________________, a resident
of _______________, Georgia, and First Citizens Corporation, a corporation
organized and existing under the laws of the State of Georgia ("First
Citizens").
On even date herewith, First Citizens and Xxxx Bankshares Corporation,
a corporation organized and existing under the laws of the State of Georgia
("Xxxx"), have entered into an Agreement and Plan of Merger (the "Merger
Agreement"). The Merger Agreement generally provides for the merger of Xxxx into
First Citizens (the "Merger") and the conversion of the issued and outstanding
shares of the $10.00 par value common stock of Xxxx ("Xxxx Common Stock") into
cash and shares of the $1.00 par value common stock of First Citizens, the
receipt of certain regulatory approvals, and the satisfaction of other
conditions.
The undersigned is a member of the Board of Directors of Xxxx and is
the owner of __________ shares of Xxxx Common Stock and, if any, has rights by
option or otherwise to acquire _______________ additional shares of Xxxx Common
Stock ("Shares"). In order to induce First Citizens to enter into the Merger
Agreement, the undersigned is entering into this Agreement with First Citizens
to set forth certain terms and conditions governing the actions to be taken by
the undersigned with respect to the Shares until consummation of the Merger.
NOW, THEREFORE, in consideration of the transactions contemplated by
the Merger Agreement and the mutual promises and covenants contained herein, the
parties agree as follows:
I. The undersigned covenants and agrees with First Citizens that for a
period of three years after the effective time of the Merger, or one year
following the date of the undersigned's termination of his status as a Director
of Xxxx State Bank, whichever is later, the undersigned shall not, without the
prior written consent of First Citizens directly or indirectly serve as a
consultant to, serve as a management official of, or be or become a major
shareholder of any financial institution having its principal office in Xxxxxxx
County or any county adjacent to Xxxxxxx County. It is expressly understood that
the covenants contained in this paragraph 1 do not apply to (i) securities
holdings which cause the undersigned to be deemed a shareholder of a financial
institution other than Xxxx as of the date of this Agreement, or (ii) advisory
relationships with a financial institution which the undersigned has as of the
date of this Agreement or may have after the date hereof solely in the capacity
as legal counsel or certified public account. For the purposes of the covenants
contained in this paragraph 1, the following terms shall have the following
respective meanings:
(a) The term "management official" shall refer to service of
any type which gives the undersigned the authority to participate,
directly or indirectly, in policy-making functions of the financial
institution. This includes but is not limited to, service as an
organizer, officer, director or advisory director of the financial
institution. It is expressly understood that the undersigned may be
deemed a management official of the financial institution whether or
not he holds any official, elected or appointed position with such
financial institution.
(b) The term "financial institution" shall refer to any bank,
bank holding company, savings and loan association, savings and loan
holding company, banking-related company or any other similar financial
institution which engages in the business of accepting deposits or
making loans or which owns or controls a company which engages in the
business of accepting deposits or making loans. It is expressly
understood that the term "financial institution" shall include any
financial institution as defined herein that, after the date of this
Agreement, makes application to an appropriate federal or state
regulatory authority for approval to organize.
(c) The term "major shareholder" shall refer to the beneficial
ownership of 5% or more of any class of voting securities of such
company or the ownership of 5% of the total equity interest in such
company, however denominated.
The provisions of this paragraph 1 shall be of no further force and
effect if the undersigned is not offered employment as a director or advisory
director of Xxxx State Bank or any of its subsidiaries at the effective time of
the Merger.
(2) The undersigned acknowledges and agrees that First Citizens could
not be made whole by monetary damages in the event of any default by the
undersigned of the terms and conditions set forth in this Agreement. It is
accordingly agreed and understood that First Citizens, in addition to any other
remedy which it may have at law or in equity, shall be entitled to an injunction
or injunctions to prevent breaches of this Agreement and specifically to enforce
the terms and provisions hereof in any action instituted in any court of the
United States or in any state having appropriate jurisdiction.
(3) The undersigned, in his capacity as an officer or a director, is
not aware of any claims against Xxxx or Xxxx State Bank (other than regular
compensation and benefits in the ordinary course of business and routine
deposit, loan and other banking services conducted in the ordinary course of
business with Xxxx and Xxxx State Bank, as applicable) that he may have, and
hereby releases Xxxx and Xxxx State Bank from any and all claims of which he is
aware that he may have against either of them in his capacity as an officer or a
director.
(4) Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provision of
this Agreement in any other jurisdiction. If any provision of this Agreement is
so broad as to be unenforceable, the provision shall be interpreted to be only
so broad as is enforceable.
(5) Except with respect to the covenants contained in paragraph 1,
which shall be governed by the terms set forth therein and shall be effective
only upon consummation of the Merger, the covenants and obligations set forth in
this Agreement shall expire and be of no further force and effect on the earlier
of (i) May 31, 1997 or such date to which the Merger Agreement is extended, or
(ii) the date on which the Merger Agreement shall terminate.
- 2 -
IN WITNESS WHEREOF, this Agreement has been duly executed under seal
and delivered by the undersigned as of the day and year first above written.
As to the Undersigned,
signed in the presence of:
----------------------------------- --------------------------------------
Name:
---------------------------------
(Please print or type)
ATTEST: FIRST CITIZENS CORPORATION
By: By:
-------------------------------- -------------------------------------
(Secretary)
[CORPORATE SEAL]
