Exhibit 10.4
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 Anthony N. Stancil
(“ 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
