Exhibit 10.2
CHANGE IN CONTROL
AND
NON-COMPETITION
AGREEMENT
This AGREEMENT is executed and
effective on this day of
, 2005 (the “Agreement”) by and between Vision
Bancshares, Inc. , an Alabama corporation and
(the “Employee”), and is joined in by Vision
Bank , an Alabama banking corporation (the
“Bank”).
W I T N E S S E T
H
WHEREAS, Vision Bancshares, Inc.
recognizes the Employee’s expertise in connection with his
employment with the Vision Bancshares, Inc. or its subsidiaries or
affiliates (collectively, the “Company”);
WHEREAS, the Company desires to
provide the Employee with severance benefits if the
Employee’s employment in his current position is terminated
for the reasons set forth herein and the Employee refrains from
engaging in certain activities in the event his employment is so
terminated, upon the terms and conditions hereinafter set forth;
and
WHEREAS, the Company and the
Employee have heretofore entered into a Change in Control Agreement
dated the day of
,
containing similar terms and conditions as this Agreement (the
“Prior Agreement”); and
WHEREAS, the Company and the
Employee believe the Prior Agreement should be amended and restated
in its entirety and have therefore agreed to enter into this
Agreement, which shall supersede and replace the Prior
Agreement.
THEREFORE, in consideration of the
premises and of the mutual covenants and agreements herein, the
parties hereby agree as follows:
1. Duties . Employee shall perform for
the Company all duties incident to the positions of
. In addition, the Employee shall engage in such other services for
the Company as the Company shall, from time to time, reasonably
direct. The Employee shall use his best efforts in, and devote his
entire time, attention, and energy, to the Company’s
business; provided that nothing contained herein is intended to
prohibit the Employee from spending a reasonable amount of time
managing his personal investments and discharging his civic
responsibilities as long as such activities do not interfere with
his duties and obligations to the Company.
2. Salary; Benefits
.
(a) The Employee’s initial
annual base salary shall be
Dollars ($
), subject to applicable state and federal withholding and other
standard deductions payable in accordance with the Company’s
normal payroll practices (the “Base Salary”). The Base
Salary shall be reviewed no less than annually by the Company. If
the Company in its sole discretion should modify the Base Salary
upon any such review then, for purposes of this Agreement, Base
Salary shall thereafter mean such modified amount, provided that
the Base Salary may not be decreased at any time within three
(3) years following a Change in Control.
(b) In addition to the Base Salary,
the Employee shall be eligible to receive additional incentive
compensation as is offered to similarly situated employees of the
Company in amounts determined in the sole discretion of the
Company.
(c) The Employee shall be eligible
for participation in all option, stock purchase, retirement,
profit-sharing and all similar plans and programs of the Company
and all medical insurance, life insurance, and accident and
disability insurance plans of the Company, and all other benefit
plans or programs or any successor plans or programs in effect at
the time for employees in the same class or category as the
Employee, on the same terms and subject to the same conditions
required of employees in the same class or category as the
Employee. The specific arrangements and benefits referred to in
this Agreement are not intended to preclude eligibility for other
compensation or benefits which may be authorized by the Company
from time to time.
3. Termination .
(a) In the event that the
Employee’s employment is terminated under circumstances
stated in this Section 3 and only under such circumstances,
the Employee shall be entitled to receive the Termination Benefits
as set forth in Section 4 hereinbelow. The circumstances to
which this Section 3 applies are:
(i) Termination of employment
voluntarily by the Employee at any time within three (3) years
following a Change in Control, upon the occurrence of: (1) the
reduction of Employee’s Base Salary (including any deferred
portions thereof) or levels of benefits or supplemental
compensation without compensation therefor; (2) a relocation
of the Employee’s principal place of employment to a location
outside a 25-mile radius from the Employee’s principal place
of employment or a material increase in the amount of travel
normally required of Employee in connection with his employment
without the Employee’s prior written consent; or (3) a
material and adverse change in the Employee’s position with
the Company in effect immediately before the occurrence of a Change
in Control or failure to provide authority, responsibilities and
reporting relationships consistent with the Employee’s
position; provided, however, that it will not be a material and
adverse change in the Employee’s position if, in connection
with a Change in Control, Employee’s position,
responsibilities and reporting relationships are changed to account
for the effect of the Change in Control but are otherwise
consistent with Employee’s position immediately before the
Change in Control; or
(ii) Termination by the Company of
the Employee’s employment at any time within three
(3) years following a Change in Control, for reasons other
than for Cause or other than as a consequence of the
Employee’s death or Permanent Disability.
(b) For purposes of this Agreement,
the term “Cause” means (i) willful, flagrant and
repeated breach of or gross inattention to the Employee’s
duties; (ii) gross malfeasance of office or flagrant
disloyalty to the Company; (iii) commission of a felony or an
unlawful act involving fraud or moral turpitude; or (iv) the
intentional violation by the Employee of applicable state and
federal banking regulations, rules or other statutes.
2
(c) For purposes of this Agreement,
“Permanent Disability”` shall mean the Employee’s
becoming physically or mentally disabled such that he is unable to
perform his duties to the Company for a period of 180 consecutive
days.
4. Termination Benefits . In the event of
termination of the Employee’s employment under the
circumstances set forth in Section 3(a) above, the Company
agrees to provide or to cause to be provided the following payment
and benefits to the Employee:
(a) Within ten (10) business
days after such termination, the Company shall pay to the Employee
a lump sum cash payment in an amount equal to the Base Salary in
effect immediately prior to such termination for a term equal to
three (3) years less the amount of time worked by the Employee
for the Company after the Change in Control (the
“Continuation Period”) provided that the amount paid
pursuant to Section 5(f) hereof shall be credited against such
payment but in no event shall the Employee owe any money to the
Company as a result of such credit. The payment described in this
Section 4(a) shall be made to the Employee’s estate in
the event of the Employee’s death prior to the receipt
thereof.
(b) In addition to the lump sum cash
payment described in Section 4(a) above, during the
Continuation Period, the Company shall continue to provide medical,
dental, life insurance and other welfare benefits (the
“Welfare Benefits”) to the Employee, his spouse and his
eligible dependents on the same basis and at the same cost as such
benefits were provided to the Employee immediately prior to his
date of termination; provided that if terms of the Company’s
plans governing such Welfare Benefits do not permit such coverage,
the Company will provide such Welfare Benefits to the Employee with
the same after tax effect. Notwithstanding the foregoing sentence,
the Welfare Benefits otherwise receivable by the Employee pursuant
to this Section 4(a) shall be reduced or eliminated to the
extent the Employee becomes eligible to receive comparable Welfare
Benefits at substantially similar costs from another employer. The
Company shall also provide the Employee with such other employee
and fringe benefits as may be due to the Employee pursuant to the
provisions of the plans which govern such issues.
(c) The Company’s promise to
provide or cause to be provided the benefits described in this
Section 4 are absolute and unconditional, and shall not be
affected by any circumstances, including, without limitation, any
rights of offset, counterclaim, recoupment, defense, or other
rights which the Company may have against him or others. All such
amounts payable or to be payable by the Company hereunder shall be
paid without notice or demand, and each and every payment made
hereunder by the Company shall be final, and the Company shall not
have any reason whatsoever to seek to recover any payment from the
Employee or whomsoever shall be entitled thereto. Notwithstanding
the provisions of the law or any provision hereunder, the
Employee’s entitlement to benefits under this Agreement shall
not be governed by a duty to mitigate those damages by seeking
further employment nor shall they be offset by any compensation the
Employee may receive from future employment.
3
5. Non-Competition,
Non-Solicitation and Non-Disclosure .
(a) The Employee, for a period of
time beginning with the date of the Change in Control and ending on
the earlier of (i) the third (3 rd ) anniversary of the Change in
Control or (ii) one (1) year following the date the
Employee’s employment with the Company is terminated for any
reason (the “Non-Competition Period”), will not,
without the prior written approval of the Company’s board of
directors, directly or indirectly (i) own greater than a 5%
equity interest in any class of stock of, or manage, operate,
participate in, be employed by, perform consulting services for, or
otherwise be connected in any manner with, any bank holding company
or any depository institution located within a 50-mile radius of
any office location of Vision as of the time immediately prior to
the Change in Control, which is competitive with the business of
the Company; (ii) solicit or induce any employee of the
Company to terminate such employment or to become employees of any
other person or entity; (iii) solicit any customer, supplier,
contractual party of the Company or any other person with whom each
of them has business relations to cease doing business with the
Company; or (iv) in any way interfere with the relationship of
the Company and any of their respective employees, customers,
suppliers, contractual parties or any other person with whom each
of them has business relations.
(b) The Employee will not, during or
after the term of his
