Exhibit 10.1
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of the 7th day of
September, 2005 (the "Effective Date") by and between Rivoli
Bancorp, Inc., a Georgia Corporation (the "Company"), and Melville
A. Jamison, II ("Executive").
W I T N E S S E T H:
WHEREAS, Executive is currently employed by the Company as an
Executive Vice President of the Company; and
WHEREAS, the Board of Directors of the Company (the "Board")
believes that it is in the best interest of the Company and its
shareholders to assure that the Company will have the continued
dedication of Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined below) of the
Company; that 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 that it is appropriate 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 the financial
services industry;
WHEREAS, in order to accomplish the foregoing objectives and to
induce Executive to remain in the employ of the Company, the
Company and Executive desire to enter into this Agreement which,
among other things, provides for certain payments to Executive upon
a Change of Control of the Company and the payment of compensation
and benefits payable to Executive if Executive's employment
terminates in relation to or following a Change of Control of the
Company;
NOW THEREFORE, in consideration of the premises and mutual
covenants contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Definitions. As
used herein, the following terms shall have the meanings set forth
below:
(a) "Change of
Control" shall mean the occurrence of any of the following
events:
(i) An acquisition
(other than directly from the Company) of any voting securities of
the Company (the "Voting Securities") by any "Person" (as the term
person is used for the purposes of Section 13(d) or 14(d) of the
Securities Exchange Act of 1934, as amended as of Effective Date
(the "Exchange Act")) immediately after which such Person has
Beneficial Ownership (within the meaning of Rule l3d-3 promulgated
under the Exchange Act) of greater than 35% of the combined voting
power of the Company's then-outstanding Voting Securities;
provided, however, in determining whether or not a Change of
Control has occurred, Voting Securities which are acquired in a
"Non-Control Acquisition" (as hereinafter defined) shall not
constitute a Change of Control. A "Non-Control Acquisition" shall
mean an acquisition by (A) the Company, (B) any employee benefit
plan (or related trust) sponsored or maintained by the Company or
any affiliate of the Company or (C) any Person in connection with a
Non-Control Transaction (as hereinafter defined);
(ii) Individuals
who, as of the date hereof, constitute the Board (the "Incumbent
Board") cease for any reason to constitute at least a majority of
the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was approved
by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office
occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) The
consummation of:
(A) a merger,
consolidation, reorganization or similar corporate transaction with
or into the Company or in which securities of the Company are
issued, unless such transaction is a "Non-Control Transaction." A
"Non-Control Transaction" is a merger, consolidation,
reorganization or similar corporate transaction with or into the
Company or in which securities of the Company are issued where:
I. the
shareholders of the Company immediately before such transaction
own, directly or indirectly, a majority of the combined voting
power of the outstanding voting securities of the corporation
resulting from such transaction (the "Surviving Corporation") in
substantially the same proportion as their ownership of the Voting
Securities immediately before such transaction,
II. the
individuals who were members of the Incumbent Board immediately
prior to the execution of the agreement providing for such
transaction constitute at least a majority of the members of the
board of directors of the Surviving Corporation or a corporation
owning directly or indirectly a majority of the combined voting
power of the outstanding securities of the Surviving Corporation,
and
III. no person
other than (x) the Company, (y) any subsidiary of the Company, or
(z) any employee benefit plan (or any trust forming a part thereof)
maintained by the Company immediately prior to such transaction
owns a majority of the combined voting power of the Surviving
Corporation's then-outstanding voting securities; or
(B) approval by
the shareholders of the Company of a complete liquidation or
dissolution of the Company; or
(C) the sale or
other disposition of not less than 85% of the Company's assets,
measured by fair market value, to any Person.
Notwithstanding the foregoing, a Change of Control shall not be
deemed to occur solely because any Person (the "Subject Person")
acquired Beneficial Ownership of more than the permitted amount of
the outstanding Voting Securities as a result of the acquisition of
Voting Securities by the Company which, by reducing the number of
Voting Securities outstanding, increases the proportional number of
shares Beneficially Owned by the Subject Person, provided that if a
Change of Control would occur (but for the operation of this
sentence) and after such acquisition of Voting Securities by the
Company, the Subject Person becomes the Beneficial Owner of any
additional Voting Securities, then a Change of Control shall
occur.
(b) "Cause" shall
mean:
(i) any act or
omission which constitutes a material breach by Executive of his
obligations under any employment agreement then in effect between
Executive and the Company, which in any case fails to be corrected
by Executive pursuant to the terms of such employment
agreement;
(ii) the
commission by Executive of a felony or any crime involving fraud or
dishonesty;
(iii) the use of
illegal drugs by Executive, or drunkenness or substance abuse by
Executive which interferes with the performance of his duties to
the Company;
(iv) insubordination,
gross incompetence or willful misconduct on the part of Executive
in the performance of his duties to the Company;
(v) excessive
absenteeism by Executive not related to illnesses, sick leave or
authorized vacations; or
(vi) any other
act or omission by Executive (other than an act or omission
resulting from the exercise by Executive of good faith business
judgment) which materially impairs the financial condition or
business reputation of the Company or is otherwise materially
detrimental to the Company.
(c) "Salary and
Benefits Continuation" shall mean payment within 30 days of the
Triggering Event of a lump sum amount of cash equal to
$150,000.
(d) "Triggering
Event" shall mean the occurrence of one of the following
events:
(i) the
termination of Executive's employment with the Company by the
Company other than for Cause prior to a Change of Control, and the
reasonable demonstration by Executive that such termination of
employment (x) was at the request of a third party who had taken
steps reasonably calculated to effect a Change of Control, or (y)
otherwise arose in connection with or in anticipation of a Change
of Control; or
(ii)
