EXHIBIT 10.29
CHANGE IN CONTROL
AGREEMENT
BETWEEN COMMUNITY
BANK
AND PATRICK M.
FRAWLEY
This CHANGE IN CONTROL AGREEMENT
(this “Agreement”), dated this 12th day of December,
2003 by and between Community Bank, an Alabama banking company (the
“Company”), and Patrick M. Frawley (the
“Executive”).
WITNESSETH:
WHEREAS , the Company wishes to assure itself and its
key employees of continuity of management and objective judgment in
the event of any actual or contemplated Change in Control of the
Company, and the Executive is a key employee of the Company and is
an integral part of management of the Company (for purposes hereof,
employment with any present or future parent or subsidiary company
of the Company shall be considered employment by the Company);
and
WHEREAS , this Agreement is not intended to materially
alter the compensation and benefits that the Executive could
reasonably expect to receive in the absence of a Change in Control
of the Company, and this Agreement accordingly will be operative
only upon circumstances relating to any actual or anticipated
change in control of the Company.
NOW, THEREFORE
, for and in consideration of the
premises and the mutual covenants herein contained, the parties
hereby agree as follows:
OPERATION OF
AGREEMENT
This Agreement shall be effective
immediately upon its execution by the parties hereto, but anything
in this Agreement to the contrary notwithstanding, neither the
Agreement nor any provision hereof shall be operative unless,
during the term of this Agreement, there has been a Change in
Control of the Company during the term of this Agreement, at which
time all of the provisions hereof shall become operative
immediately.
II. TERM OF
AGREEMENT
The term of this Agreement shall be
for an initial three (3) year period commencing on the date hereof,
and shall be automatically extended at the end of the first year of
such initial three (3) year period and on each subsequent
anniversary thereafter, without further action by Executive or the
Company, for an additional one (1) year period, unless prior to any
such renewal date, the Company shall give written notice to the
Executive of its desire to cause the Agreement to cease to extend
automatically. Upon such notice, the Employment Period shall
terminate upon the expiration of the then-current term, including
any prior extensions.
III. DEFINITIONS.
1. “ Board ” or
“ Board of Directors ” – the Board of
Directors of the Company.
2. “ Cause ”
– either
(i) the willful engaging by
Executive in any act that constitutes gross malfeasance of duty and
that directly results in material injury to the Company;
or
(ii) Executive’s conviction
of, pleading guilty to, or confession or admission of committing
any felony, or any act of fraud, misappropriation or embezzlement,
that directly results in a material injury to the
Company;
provided , however , that in the case of (i)
above, such conduct shall not constitute Cause unless the Board
shall have delivered to the Executive notice setting forth
specifically (A) the conduct deemed to qualify as Cause, (B)
reasonable action that would remedy such objection, and (C) a
reasonable time (not less than thirty (30) days) within which the
Executive may take such remedial action and the Executive shall not
have taken such specified remedial action within such specified
reasonable time.
3. “ Change in Control
” - either
(i) the acquisition, directly or
indirectly, by any “person” (as such term is used in
Section 13(d) and 14(d) of the Exchange Act) of securities of the
Company (or its parent company) representing an aggregate of twenty
percent (20%) or more of the combined voting power of the
Company’s (or its parent company’s) then outstanding
securities; or
(ii) during any period of two (2)
consecutive years individuals who, at the beginning of such period,
constitute the Board of the Company (or its parent company) cease
for any reason to constitute at least a majority thereof, unless
the election of each new director was approved in advance by a vote
of at least a majority of the directors then still in office who
were directors at the beginning of the period; or
(iii) consummation of (a) a merger,
consolidation, statutory share exchange, reorganization, or other
business combination of the Company (or its parent company) with
any other “person” (as such term is used in Section
13(d) and 14(d) of the Exchange Act), other than a merger,
consolidation, statutory share exchange, reorganization, or other
business combination which would result in the outstanding common
stock of the Company (or its parent company) immediately prior
thereto continuing to represent (either by remaining outstanding or
by being converted into common stock of the surviving entity or a
parent or affiliate thereof) at least sixty (60%) percent of the
outstanding common stock of the Company or such surviving entity or
parent thereof outstanding immediately after such transaction, or
(b) the sale or disposition by the Company (or its parent company)
of all or substantially all of the Company’s (or its parent
company’s) assets; or
(iv) approval by the stockholders of
the Company (or its parent company) of a complete liquidation or
dissolution of the Company (or its parent company); or
(v) the occurrence of any other
event or circumstances which is not covered by (i) through (iv)
above which the Board determines affects control of the Company (or
its parent company) and, in order to implement the purposes of this
Agreement as set forth above, adopts a resolution that such event
or circumstance constitutes a “Change in Control” for
the purposes of this Agreement.
4. “ Code ”
– the Internal Revenue Code of 1986, as amended.
5. “ Disability ”
– the Executive’s inability to perform the essential
functions of his regular duties and responsibilities, without
reasonable accommodation, as a result of medically determinable
physical or mental incapacity for a period of six (6) consecutive
months. The determination of whether the Executive suffers a
Disability shall be made by a physician acceptable to both the
Executive (or his personal representative) and the
Company.
6. “ Exchange Act
” – the term “Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
7. “ Involuntary
Termination ” – termination of the
Executive’s employment by the Executive following a Change in
Control which, in the reasonable judgment of the Executive, is due
to (i) a change of the
2
Executive’s responsibilities, position
(including status, office, title, reporting relationships or
working conditions), authority or duties (including changes
resulting from the assignment to the Executive of any duties
inconsistent with his positions, duties or responsibilities as in
effect immediately prior to the Change in Control); or (ii) a
reduction in the Executive’s compensation or benefits as in
effect immediately prior to the Change in Control; or (iii) the
Company’s requiring Executive, without his consent, to move
his primary place of employment to a place more than fifty (50)
miles from the Executive’s primary place of employment
immediately prior to the Change in Control. Involuntary Termination
does not include the death or Disability of the Executive.
Executive’s continued employment shall not constitute consent
to, or a waiver of rights with respect to, any circumstance
constituting Involuntary Termination hereunder.
8. “ Present Value
” – the term “Present Value” shall have the
same meaning as provided in Section 280G(d)(4) of the
Code.
IV. BENEFITS UPON TERMINATION
FOLLOWING A CHANGE IN CONTROL
1. Termination – The
Executive shall be entitled to, and the Company shall pay or
provide to
