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Exhibit 10.1
AMENDED AND RESTATED
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED CHANGE OF CONTROL EMPLOYMENT AGREEMENT
by and between Crescent Banking Company (the " Company ")
and J. Donald Boggus, Jr. (" Executive ") is dated as of
December 30, 2008, and amends and restates in its entirety the
Change of Control Employment Agreement dated as of
February 20, 2003, as further amended and restated on
May 12, 2006.
The Company’s Board of Directors (the " Board ")
has determined that it is in the best interests of the Company and
its shareholders to assure that the Company will have the continued
services of Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined in Section 2
below) of the Company. The Board believes it is imperative to
diminish the inevitable distraction of Executive by virtue of the
personal uncertainties and risks created by a pending or threatened
Change of Control and to encourage Executive’s full attention
and dedication to the Company currently and in the event of any
threatened or pending Change of Control, and to provide Executive
with compensation and benefits arrangements upon a Change of
Control which ensure that the compensation and benefits
expectations of Executive will be satisfied and which are
competitive with those of other corporations.
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are
acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Certain Definitions .
(a) The " Effective Date " shall
mean the first date during the Change of Control Period (as defined
in Section l(b)) on which a Change of Control (as defined in
Section 2) occurs. Anything in this Agreement to the contrary
notwithstanding, if Executive’s employment with the Company
has been terminated either by the Company without Cause or by
Executive for Good Reason (as such terms are defined in
Section 5), and if it is reasonably demonstrated by Executive
that such termination of employment (i) was at the request of
a third party who has taken steps reasonably calculated to effect a
Change of Control or (ii) otherwise arose in connection with
or anticipation of a Change of Control, then for all purposes of
this Agreement the "Effective Date" shall mean the date immediately
prior to the date of such termination of employment.
(b) The " Change of Control Period
" shall mean the period commencing on the date hereof and ending on
the third anniversary of the date hereof; provided, however
, that commencing on the date one year after the date hereof, and
on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "
Renewal Date "), unless this Agreement has been terminated
prior to such time, the Change of Control Period shall be
extended
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automatically so as to terminate three years from
each Renewal Date, unless at least 60 days prior to the Renewal
Date the Company shall give notice to Executive that the Change of
Control Period shall not be so extended.
2. Change of Control . For the
purposes of this Agreement, a " Change of Control " shall
mean the occurrence of any of the following events:
(a) individuals who, at the date of this Agreement, constitute
the entire Board (the " Incumbent Directors ") cease for any
reason to constitute at least a majority of the Board, provided
that any person becoming a director after the date hereof and
whose election or nomination for election was approved by a vote of
at least a majority of the Incumbent Directors then on the Board
shall be an Incumbent Director; provided, however , that no
individual initially elected or nominated as a director of the
Company as a result of an actual or threatened election contest (as
described in Rule 14a-11 under the 1934 Act (" Election
Contest ")) or other actual or threatened solicitation of
proxies or consents by or on behalf of any " person " (as
such term is defined in Section 3(a)(9) of the 1934 Act and as
used in Section 13(d)(3) and 14(d)(2) of the 1934 Act) other
than the Board (" Proxy Contest "), including by reason of
any agreement intended to avoid or settle any Election Contest or
Proxy Contest, shall be deemed an Incumbent Director;
(b) any person (including a "
group " as such term is used in Section 13(d)(3) of the
1934 Act) becomes a " beneficial owner " (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of securities of
the Company representing 35% or more of the combined voting power
of the Company’s then outstanding securities eligible to vote
for the election of the Board (" Company Voting Securities
"); provided, however , that such an event shall not be
deemed to be a Change of Control of the Company by virtue of
any of the following acquisitions: (A) any acquisition by a
person who is on the date hereof the beneficial owner of 35% or
more of the outstanding Company Voting Securities, (B) an
acquisition by the Company which reduces the number of Company
Voting Securities outstanding and thereby results in any person
acquiring beneficial ownership of more than 35% of the outstanding
Company Voting Securities; provided, that if after such
acquisition by the Company such person becomes the beneficial owner
of additional Company Voting Securities that increases the
percentage of outstanding Company Voting Securities beneficially
owned by such person, a Change of Control of the Company
shall then occur, (C) an acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any Parent or Subsidiary of the Company, (D) an acquisition by
an underwriter temporarily holding securities pursuant to an
offering of such securities, or (E) an acquisition pursuant to
a Non-Qualifying Transaction (as defined in Section 2(C)
hereof); or
(c) the consummation of a reorganization,
merger, consolidation, statutory share exchange or similar form of
corporate transaction involving the Company that requires the
approval of the Company’s shareholders, whether for such
transaction or the issuance of Company securities in the
transaction (a " Reorganization "), or the sale or other
disposition of all or substantially all of the Company’s
assets to an entity that is not an affiliate of the Company whether
or not a shareholder vote is required and including,
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without limitation, one or more tender offers (a
" Sale "), unless immediately following such Reorganization
or Sale: (A) more than 50% of the total voting power of
(x) the corporation or entity resulting from such
Reorganization or the corporation or entity which has acquired all
or substantially all of the assets of the Company (in either case,
the " Surviving Company "), or (y) if applicable, the
ultimate parent corporation or entity that directly or indirectly
has beneficial ownership of 50% or more of the voting securities
eligible to elect directors of the Surviving Company (the "
Parent Company "), is represented by the Company Voting
Securities that were outstanding immediately prior to such
Reorganization or Sale (or, if applicable, is represented by shares
into which such Company Voting Securities were converted pursuant
to such Reorganization or Sale), and such voting power among the
holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the holders
thereof immediately prior to the Reorganization or Sale,
(B) no person (other than (x) the Company, (y) any
employee benefit plan (or related trust) sponsored or maintained by
the Surviving Company or the Parent Company, or (z) a person
who immediately prior to the Reorganization or Sale was the
beneficial owner of 35% or more of the outstanding Company Voting
Securities) is the beneficial owner, directly or indirectly, of 35%
or more of the total voting power of the outstanding voting
securities eligible to elect directors of the Parent Company (or,
if there is no Parent Company, the Surviving Company), and
(C) at least a majority of the members of the board of
directors of the Parent Company (or, if there is no Parent Company,
the Surviving Company) following the consummation of the
Reorganization or Sale were Incumbent Directors at the time of the
Board’s approval of the execution of the initial agreement
providing for such Reorganization or Sale. Any Reorganization or
Sale which satisfies all of the criteria specified in (A),
(B) and (C) above shall be deemed to be a "
Non-Qualifying Transaction; " or
(d) approval by the shareholders of the
Company of a complete liquidation or dissolution of the
Company.
3. Employment Period . Unless
Executive’s employment is terminated earlier in accordance
with Section 6 herein, the Company hereby agrees to continue
Executive in its employ of the Company, and Executive hereby agrees
to remain in the employ of the Company subject to the terms and
conditions of this Agreement, for the period commencing on the
Effective Date and ending on the third anniversary of such date
(the " Employment Period ").
4. Terms of Employment .
(a) Position and Duties .
(i) During the Employment Period, (A) Executive’s
position (including status, offices, titles and reporting
requirements), authority, duties and responsibilities shall be at
least commensurate in all material respects with those held,
exercised and assigned at any time during the 120-day period
immediately preceding the Effective Date, and
(B) Executive’s services shall be performed at the
location where
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Executive was employed immediately preceding the
Effective Date or any office or location less than 35 miles from
such location.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which Executive is entitled, Executive
agrees to devote reasonable attention and time during normal
business hours to the business and affairs of the Company and, to
the extent necessary to discharge the responsibilities assigned to
Executive hereunder, to use Executive’s reasonable best
efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period, Executive may,
without violating this Agreement (A) serve on corporate, civic
or charitable boards or committees, (B) engage in other
business activities that do not represent a conflict of interest
with the full execution of his duties to the Company, and
(C) manage personal investments, so long as such activities do
not significantly interfere with the performance of
Executive’s responsibilities as an employee of the Company in
accordance with this Agreement. It is expressly understood and
agreed that, to the extent that any such activities have been
conducted by Executive prior to the Effective Date, the continued
conduct of such activities (or the conduct of activities similar in
nature and scope thereto) subsequent to the Effective Date shall
not thereafter be deemed to interfere with the performance of
Executive’s responsibilities to the Company.
(b) Compensation .
(i) Base Salary . During the Employment Period, Executive
shall receive an annual base salary (" Annual Base Salary
"), which shall be paid at a monthly rate, at least equal to 12
times the highest monthly base salary paid or payable, including
any base salary which has been earned but deferred, to Executive by
the Company and its affiliated companies in respect of the 12-month
period immediately preceding the month in which the Effective Date
occurs. During the Employment Period, the Annual Base Salary shall
be reviewed no more than 12 months after the last salary increase
awarded to Executive prior to the Effective Date and thereafter at
least annually. Any increase in Annual Base Salary shall not serve
to limit or reduce any other obligation to Executive under this
Agreement. Annual Base Salary shall not be reduced after any such
increase, and the term Annual Base Salary as utilized in this
Agreement shall refer to Annual Base Salary as so increased. As
used in this Agreement, the term " affiliated companies "
shall include any entity controlled by, controlling or under common
control with the Company.
(ii) Annual Bonus . In addition to Annual Base Salary,
Executive shall be awarded, for each fiscal year ending during the
Employment Period, an annual bonus (the " Annual Bonus ") in
cash at least equal to Executive’s highest annual bonus for
the last three full fiscal years prior to the Effective Date
(annualized in the event that Executive was not employed by the
Company for the whole of such fiscal year). Each such Annual Bonus
shall be paid no later than the end of the third month of the
fiscal year next following the fiscal year for which the Annual
Bonus is awarded, unless Executive shall elect to defer the receipt
of such Annual Bonus in accordance with the terms of the
Company’s deferred compensation plan, if any.
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(iii) Incentive, Savings and Retirement
Plans . During the Employment Period, Executive shall be
entitled to participate in all incentive, savings and retirement
plans, practices, policies and programs applicable generally to
senior executive officers of the Company and its affiliated
companies (" Peer Executives "), but in no event shall such
plans, practices, policies and programs provide Executive with
incentive opportunities, savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for Executive under such plans,
practices, policies and programs as in effect at any time during
the 120-day period immediately preceding the Effective Date or if
more favorable to Executive, those provided generally at any time
after the Effective Date to Peer Executives.
(iv) Welfare Benefit Plans . During the Employment
Period, Executive and/or Executive’s family, as the case may
be, shall be eligible for participation in and shall receive all
benefits under welfare benefit plans, practices, policies and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, prescription, dental,
disability, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent applicable
generally to Peer Executives.
(v) Expenses . During the Employment Period, Executive
shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by Executive in accordance with the
policies, practices and procedures of the Company applicable to
Peer Executives.
(vi) Fringe Benefits . During the Employment Period,
Executive shall be entitled to fringe benefits in accordance with
the plans, practices, programs and policies of the Company
applicable to Peer Executives.
5. Termination of Employment
.
(a) Death or Disability .
Executive’s employment shall terminate automatically upon
Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of Executive
has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to Executive
written notice in accordance with Section 13(b) of this
Agreement of its intention to terminate Executive’s
employment. In such event, Executive’s employment with the
Company shall terminate effective on the 30th day after receipt of
such notice by Executive (the " Disability Effective Date
"), provided that , within the 30 days after such receipt,
Executive shall not have returned to full-time performance of
Executive’s duties. " Disability " means the inability
of Executive, as determined by the Board, to perform the essential
functions of his regular duties and responsibilities, with or
without reasonable accommodation, due to a medically determinable
physical or mental illness which has lasted (or can reasonably be
expected to last) for a continuous period of six (6) months
during any continuous twelve (12) month period.
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(b) Cause . The
Company may terminate Executive’s employment during the
Employment Period with or without Cause. For purposes of this
Agreement, " Cause " shall mean:
(i) the willful and continued failure or refusal of Executive to
perform substantially Executive’s duties with the Company
(other than any such failure resulting from incapacity due to
physical or mental illness, and specifically excluding any failure
by Executive, after reasonable efforts, to meet performance
expectations), after a written demand for substantial performance
is delivered to Executive by the Board of Directors of the Company
which specifically identifies the manner in which such Board
believes that Executive has not substantially performed
Executive’s duties, or
(ii) the engaging by Executive in illegal conduct;
(iii) misconduct by Executive which subjects the Company to
liability or is otherwise injurious to the Company;
(iv) the material breach of this Agreement by Executive; or
(v) the failure or refusal of Executive to follow a lawful
directive of the Board of Directors of the Company after a written
demand for performance is delivered to Executive by the Board of
Directors of the Company which specifically identifies the manner
in which such Board believes that Executive has failed to follow
the directive.
For purposes of this provision, no act or failure to act, on the
part of Executive, shall be considered " willful " unless it
is done, or omitted to be done, by Executive in bad faith or
without reasonable belief that Executive’s action or omission
was in the best interests of the Company. Any act, or failure to
act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be
done, by Executive in good faith and in the best interests of the
Company. The cessation of employment of Executive shall not be
deemed to be for Cause unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the
affirmative vote of not less than three-fourths of the entire
membership of the Board of the Company finding that Executive is
guilty of the conduct described in subparagraph (i) - (v)
above.
(c) Good Reason . Executive may
terminate his employment for Good Reason or for no reason at any
time. " Good Reason " means:
(i) without the written consent of Executive, the assignment to
Executive of any duties inconsistent in any material respect with
Executive’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities as
in effect on the Effective Date, or any other action by the Company
which results in a material diminution in such position, authority,
duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent
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action which is remedied by the Company promptly
after receipt of written notice thereof given by
Executive;
(ii) the Company’s requiring Executive, without his
consent, to be based at any office or location that is more than 35
miles from the location where Executive was employed immediately
prior to the Effective Date;
(iii) a reduction in Executive’s Annual Base Salary or
benefits as in effect on the Effective Date or as the same may be
increased from time to time that is not remedied by the Company
promptly after receipt of written notice thereof given by
Executive;
(iv) the failure by the Company (a) to continue in effect
any compensation plan in which Executive participates as of the
Effective Date that is material to Executive’s total
compensation, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect
to such plan, or (b) to continue Executive’s
participation therein (or in such substitute or alternative plan)
on a basis not materially less favorable, both in terms of the
amount of benefits provided and the level of Executive’s
participation relative to other participants that is not remedied
by the Company promptly after receipt of written notice thereof
given by Executive;
(v) any failure by the Company to comply with and satisfy
Section 12(c) of this Agreement; or
(vi) the material breach of this Agreement by the Company.
Anything in this Agreement to the contrary notwithstanding, a
termination by Executive for any reason during the 30-day period
immediately following the first anniversary of the Effective Date
shall be deemed to be a termination for Good Reason for all
purposes of this Agreement.
(d) Notice of Termination . Any
termination by the Company for Cause, or by Executive for Good
Reason, shall be communicated by Notice of Termination to the other
party hereto given in accordance with this Agreement. A " Notice
of Termination " means a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive’s employment
under the provision so indicated and (iii) specifies the
termination date (which date shall be not less than sixty
(60) days after the giving of such notice). If a dispute
exists concerning the provisions of this Agreement that apply to
Executive’s termination of employment, the parties shall
pursue the resolution of such dispute with reasonable diligence.
Subject to any applicable six-month delay by reason of the
Executive being a Specif
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