As filed with the Securities and Exchange Commission on February 14, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FRANKLIN FINANCIAL NETWORK, INC.
(Exact name of registrant as specified in its charter)
Tennessee | 6022 | 20-8839445 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
722 Columbia Avenue
Franklin, Tennessee 37064
(615) 236-2265
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Richard E. Herrington
Chief Executive Officer
Franklin Financial Network, Inc.
722 Columbia Avenue
Franklin, Tennessee 37064
(615) 236-2265
(Name, address, including zip code, and telephone number, including area code of agent for service)
Copies to: | ||
Steven J. Eisen, Esq. Mark L. Miller, Esq. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC 211 Commerce Street, Suite 800 Nashville, Tennessee 37201 (615) 726-5600 |
Daniel W. Small, Esq. Daniel W. Small & Company 102 Duke Street Ashland City, TN 37015 (615) 252-6000 |
Approximate date of commencement of the proposed sale of the securities to the public:
As soon as practicable after the effectiveness of this registration statement and the satisfaction or waiver
of all other conditions to the merger described in the joint proxy statement/prospectus.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box.
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.
Indicate by check mark whether the registrant is a large accelerated file, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer, non-accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer ¨ |
Accelerated filer ¨ | Non-accelerated filer x | Smaller reporting company ¨ |
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) ¨ |
Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) ¨ |
CALCULATION OF REGISTRATION FEE
|
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Title of each class of securities to be registered |
Amount
to be
|
Proposed
maximum offering price per unit |
Proposed
offering price(2) |
Amount of registration fee(3) |
||||
Common Stock, no par value |
2,765,481 | N/A | $27,905,194 | $3,595 | ||||
|
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|
(1) | Represents the maximum number of shares of common stock of the Registrant that is expected to be issued in connection with the merger of MidSouth Bank into the Registrant. |
(2) | Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(f)(2) under the Securities Act by adding: (i) the product of the book value of MidSouth common stock of $4.33 per share as of December 31, 2013, by the maximum number of shares of MidSouth common stock to be acquired by the Registrant in the merger described herein, plus (ii) the product of the book value of MidSouth preferred stock of $8.66 per share as of December 31, 2013, by the maximum number of shares of MidSouth preferred stock to be acquired by the Registrant in the merger described herein, plus (iii) the product of the book value of MidSouth Series 2009A warrants of $1.08 per share as of December 31, 2013, by the maximum number of warrants to be acquired by the Registrant in the merger described herein, plus (iv) the product of the book value of MidSouth Series 2011-A warrants of $0.65 per share as of December 31, 2013, by the maximum number of warrants to be acquired by the Registrant in the merger described herein. |
(3) | Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $128.80 per $1,000,000 of the proposed maximum aggregate offering price. |
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Section 8(a), may determine.
The information in this joint proxy statement/prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This joint proxy statement/prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
PreliminarySubject to Completion Dated February 14, 2014
PROPOSED MERGER OF
FRANKLIN FINANCIAL NETWORK, INC. AND FRANKLIN SYNERGY BANK
AND
MIDSOUTH BANK
On behalf of the boards of directors of Franklin Financial Network, Inc. (FFN or the Corporation), Franklin Synergy Bank (FSB or the Bank) and MidSouth Bank (MidSouth), we are pleased to deliver our joint proxy statement/prospectus for a merger involving FSB and MidSouth, with FSB as the surviving Tennessee banking corporation (the merger).
The boards of directors of FFN, FSB and MidSouth have each unanimously approved the merger of MidSouth with and into FSB. If the merger is completed, each share of MidSouth common stock will be converted into the right to receive 0.425926 shares of FFN common stock; each share of MidSouth preferred stock will be converted into the right to receive 0.851852 shares of FFN common stock; each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50; and each option to purchase a share of MidSouth common stock will be converted into an option to purchase a share of FFN common stock multiplied by the exchange ratio of one share of MidSouth common stock equating to 0.425926 shares of FFN common stock (the Exchange Ratio) and the exercise price will become the exercise price of such option divided by the Exchange Ratio. Options to acquire MidSouth common stock that are considered qualified options will be converted into qualified options of FFN common stock and options to purchase MidSouth stock that are not qualified will be converted into non-qualified options to acquire FFN common stock. In lieu of the issuance of any fractional shares of FFN common stock, FFN will pay to each former MidSouth shareholder who would otherwise be entitled to receive such fractional share an amount in cash determined by multiplying (i) $13.50 by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of FFN common stock to which such holder would otherwise be entitled to receive. Both MidSouth common stock and MidSouth preferred stock have the right to vote with respect to all proposals submitted to them at the anticipated special meeting of MidSouth shareholders.
FFNs common stock is not currently listed or traded on any securities exchange or quotation system. Neither the common stock nor the preferred stock of MidSouth is listed or traded on any securities exchange or quotation system.
We cannot complete the merger unless we obtain the necessary governmental approvals and unless the shareholders of both FFN and MidSouth approve the merger agreement. Each of us is asking our shareholders to consider and vote on this merger proposal at FFNs annual meeting of shareholders and at MidSouths special meeting of shareholders. The boards of directors of FFN and MidSouth each unanimously supports the merger and recommends that you vote in favor of the merger agreement.
Your vote is very important. Whether or not you plan to attend your annual or special shareholders meeting, as appropriate, please take the time to vote as soon as possible.
You should read this entire joint proxy statement/prospectus carefully because it contains important information about the merger. In particular, you should read carefully the information under the section entitled Risk Factors.
FFN is an emerging growth company as defined in the Jumpstart Our Business Startups Act of 2012 (the JOBS Act).
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the securities to be issued under this joint proxy statement/prospectus or determined if this joint proxy statement/prospectus is accurate or adequate. Any representation to the contrary is a criminal offense. The shares of FFN common stock to be issued in the merger are not savings or deposit accounts or other obligations of any bank or non-bank subsidiary of either of our companies, and they are not insured by the Federal Deposit Insurance Corporation, the Deposit Insurance Fund, or any other governmental agency.
This joint proxy statement/prospectus is dated , 2014 and is first
being mailed to shareholders of MidSouth and FFN on or about , 2014.
Sources of Information
FFN has supplied all information contained in this joint proxy statement/prospectus relating to FFN and FSB, and MidSouth has supplied all information contained in this joint proxy statement/prospectus relating to MidSouth.
You should rely only on the information which is contained in this joint proxy statement/prospectus or to which we have referred in this joint proxy statement/prospectus. We have not authorized anyone to provide you with information that is different. You should not assume that the information contained in this joint proxy statement/prospectus is accurate as of any date other than the date of this joint proxy statement/prospectus.
WHERE YOU CAN FIND MORE INFORMATION
FFN filed a registration statement on Form S-4 to register the issuance of FFN common stock to MidSouth shareholders in the merger. This joint proxy statement/prospectus is a part of that registration statement and constitutes a prospectus of FFN and a proxy statement of each of FFN and MidSouth for FFNs annual meeting and MidSouths special meeting. As allowed by SEC rules, this joint proxy statement/prospectus does not contain all the information you can find in the registration statement or the exhibits to the registration statement.
FFN does not file reports with the SEC. FFN does, however, provide annual reports, including audited financial statements, as requested, to its shareholders in connection with its annual meeting. You may inspect or copy any materials FFN files with the SEC at the Public Reference Room at the SEC at Room 1580, 100 F. Street, N.E., Washington, D.C. 20549. For a fee, you may also obtain copies of these materials by writing to the Public Reference Section of the Commission at 100 F. Street, N.E. Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the SEC public reference room. Any public filings FFN makes are also available to the public from commercial document retrieval services and at the Internet web site maintained by the SEC at http://www.sec.gov.
When deciding how to cast your vote, you should rely only on the information contained in this joint proxy statement/prospectus. We have not authorized anyone to provide you with information that is different from what is contained in this joint proxy statement/prospectus. This joint proxy statement/prospectus is dated , 2014. You should not assume that the information contained in this joint proxy statement/prospectus is accurate as of any date other than such date, and neither the mailing of the joint proxy statement/prospectus to shareholders nor the issuance of FFN common stock shall create any implication to the contrary.
This joint proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to purchase, the securities offered by this joint proxy statement/prospectus, or the solicitation of a proxy, in any jurisdiction to or from any person to whom or from whom it is unlawful to make such offer, solicitation of an offer or proxy solicitation in such jurisdiction.
FRANKLIN FINANCIAL NETWORK, INC.
722 Columbia Avenue
Franklin, Tennessee 37064
(615) 236-2265
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON , 2014
To the shareholders of Franklin Financial Network, Inc.:
The annual meeting of shareholders of Franklin Financial Network, Inc. will be held at 722 Columbia Avenue, Franklin, Tennessee, on , 2014 at .m., local time, for the following purposes:
1. | Merger Proposal . To consider and vote on a proposal to approve the Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013, by and between MidSouth Bank and Franklin Financial Network, Inc., and Franklin Synergy Bank (the merger agreement) and the issuance of shares of FFN common stock as merger consideration as contemplated by the merger agreement (the FFN merger proposal). A copy of the merger agreement is attached to the accompanying joint proxy statement/prospectus as Appendix A. |
2. | Election of Directors . To elect the seven directors named in the accompanying joint proxy statement/prospectus to serve until the 2015 annual meeting of shareholders. |
3. | Ratification of Auditors . To ratify the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014. |
4. | Amendment of FFNs 2007 Omnibus Equity Incentive Plan . To consider and vote on a proposal to amend FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000. |
5. | Adjournment . To consider and vote on a proposal to authorize the board of directors to adjourn the annual meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the annual meeting, in person or by proxy, to approve the FFN merger proposal. |
6. | Other Business . To transact any other business as may properly come before the annual meeting or any adjournment or postponement of the annual meeting. At the present time, FFNs board of directors is unaware of any other business that might properly come before the annual meeting. |
Only shareholders of record of FFN common stock at the close of business on , 2014 will be entitled to notice of and to vote at the annual meeting and at any adjournment or postponement of the annual meeting.
FFNS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT FFN SHAREHOLDERS VOTE FOR THE ABOVE PROPOSALS.
Whether or not you plan to attend the annual shareholders meeting, please vote as soon as possible by telephone, through the Internet, or by completing, signing, dating, and returning the enclosed proxy in the accompanying pre-addressed postage-paid envelope. If you are a record shareholder, you may revoke your proxy at any time before it is voted by giving written notice of revocation to FFNs Secretary, or by filing a properly executed proxy of a later date with FFNs Secretary, at or before the meeting. If you are a record shareholder, you may also revoke your proxy by attending and voting your shares in person at the meeting.
We do not know of any other matters to be presented at the annual meeting but if other matters are properly presented, the persons named as proxies will vote on such matters at their discretion.
By Order of the Board of Directors |
Richard E. Herrington President and Chief Executive Officer |
Franklin, Tennessee
, 2014
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MIDSOUTH BANK
One East College Street
Murfreesboro, TN 37130
(615) 278-7100
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON , 2014
To the shareholders of MidSouth Bank:
A special meeting of shareholders of MidSouth Bank will be held at One East College Street, Murfreesboro, Tennessee, on , 2014 at .m., local time in Murfreesboro, Tennessee, for the following purposes:
1. | Merger . To consider and vote on a proposal to approve the Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013, by and between MidSouth Bank and Franklin Financial Network, Inc., and Franklin Synergy Bank (the merger agreement). A copy of the merger agreement is attached to the accompanying joint proxy statement/prospectus as Appendix A . |
2. | Adjournment . To consider and vote on a proposal to authorize the board of directors to adjourn the special meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the special meeting, in person or by proxy, to approve the merger agreement. |
3. | Other Business . To transact any other business as may properly come before the meeting or any adjournment or postponement. At the present time, MidSouths board of directors is unaware of any other business that might properly come before the special meeting. |
Only shareholders of record of MidSouth common stock and preferred stock at the close of business on , 2014 will be entitled to notice of and to vote at the special meeting and at any adjournment or postponement at the special meeting.
MIDSOUTHS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT MIDSOUTH SHAREHOLDERS VOTE FOR THE ABOVE PROPOSALS.
Whether or not you plan to attend the special shareholders meeting, please vote as soon as possible by completing, signing, dating, and returning the enclosed proxy, in the accompanying pre-addressed postage-paid envelope. If you are a holder of common stock, you will receive a pastel YELLOW proxy sheet and, if you hold preferred stock of any series, you will receive a pastel BLUE proxy sheet . (Of course, you may receive both if you hold both common and preferred MidSouth stock.) PLEASE VOTE ALL OF YOUR SHARES BY MARKING YOUR SELECTIONS, DATING, SIGNING AND RETURNING YOUR PROXY OR PROXIES TO US WITHOUT DELAY. If you fail to vote, that can count, in essence, as a vote against the proposed merger. You may revoke your proxy at any time before it is voted by giving written notice of revocation to MidSouths Secretary, or by filing a properly executed proxy of a later date with MidSouths Secretary, at or before the meeting. You may also revoke your proxy by attending and voting your shares in person at the meeting.
We do not know of any other matters to be presented at the special meeting but if other matters are properly presented, the persons named as proxies will vote on such matters at their discretion.
By Order of the Board of Directors |
D. Edwin Jernigan, Jr. Senior Vice President and Secretary |
Murfreesboro, Tennessee
, 2014
ii
1 | ||||
5 | ||||
SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF FRANKLIN FINANCIAL NETWORK, INC. |
11 | |||
13 | ||||
UNAUDITED PRO FORMA COMBINED CONSOLIDATED FINANCIAL INFORMATION |
14 | |||
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS |
19 | |||
25 | ||||
27 | ||||
36 | ||||
37 | ||||
37 | ||||
38 | ||||
38 | ||||
39 | ||||
40 | ||||
41 | ||||
41 | ||||
41 | ||||
42 | ||||
42 | ||||
42 | ||||
43 | ||||
46 | ||||
MidSouths Reasons for the Merger; Recommendation of the Merger by the MidSouth Board of Directors |
47 | |||
51 | ||||
56 | ||||
57 | ||||
Market Valuation for MidSouths Public Peers and Imputed MidSouth Valuation |
57 | |||
Interests of Certain FFN Executive Officers and Directors in the Merger |
63 | |||
Interests of Certain MidSouth Executive Officers and Directors in the Merger |
63 | |||
64 | ||||
66 | ||||
67 | ||||
71 | ||||
78 | ||||
78 | ||||
78 | ||||
78 | ||||
78 | ||||
79 | ||||
79 | ||||
79 | ||||
79 | ||||
80 | ||||
80 | ||||
82 |
iii
Agreement and Plan of Reorganization and Bank Merger |
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Tennessee Statutes for Dissenters Rights |
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Fairness Opinion of Sterne, Agee & Leach, Inc. |
iv
QUESTIONS AND ANSWERS ABOUT THE MERGER
The following are some questions that you may have regarding the merger and the FFN annual and MidSouth special shareholders meetings, and brief answers to those questions. We urge you to carefully read the remainder of this joint proxy statement/prospectus because the information in this section does not provide all the information that might be important to you with respect to the merger and the annual and special shareholders meetings.
Q: | What am I being asked to vote on, and how does the board recommend that I vote? |
A: | FFN shareholders are being asked to vote FOR the approval of the FFN merger proposal. Second, FFN shareholders will be asked to vote FOR the election of seven directors to serve until the 2015 annual meeting of shareholders. FFN shareholders will also be asked to vote FOR the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014. In addition, FFN shareholders will be asked to vote FOR the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000. The board of directors of FFN approved the merger agreement, determined that the merger is in the best interests of the FFN shareholders, and recommends that FFN shareholders vote FOR the approval of the FFN merger proposal. The board of directors of FFN also recommends that FFN shareholders vote FOR the election of seven directors to serve until the 2015 annual meeting of shareholders, FOR the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014, and FOR the amendment of FFNs 2007 Omnibus Equity Incentive Plan. |
MidSouth shareholders are being asked to vote FOR the approval of the merger agreement, thereby approving the merger. The board of directors of MidSouth adopted the merger agreement, determined that the merger is in the best interests of the MidSouth shareholders, and recommends that MidSouth shareholders vote FOR approval of the merger agreement.
In addition, you are being asked to grant authority to FFNs and MidSouths boards of directors to adjourn the respective annual and special shareholders meetings of FFN and MidSouth to allow time for further solicitation of proxies in the event there are insufficient votes present at the FFN annual or MidSouth special shareholders meetings, in person or by proxy, to approve, as to FFN, the FFN merger proposal or as to MidSouth, the merger agreement.
Q: | What vote is required to approve each item? |
A : | FFN. Approval of the FFN merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of FFN common stock entitled to vote at the annual shareholders meeting. Directors will be elected by a plurality of the votes cast by holders of shares entitled to vote at the annual meeting, which means that the seven nominees receiving the largest number of affirmative votes will be elected to FFNs board of directors. Ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014 will require the affirmative vote of the holders of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter. Approval of the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000 requires the affirmative vote of the holders of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter. Approval of the proposal to authorize adjournment will require the affirmative vote of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter. |
MidSouth. Approval of the merger agreement requires the affirmative vote of the holders of a majority of the outstanding shares of MidSouth common stock and preferred stock (the MidSouth voting stock) entitled to vote at the special shareholders meeting. Approval of the proposal to authorize adjournment will require the affirmative vote of a majority of shares of MidSouth voting stock present in person or by proxy and entitled to vote on the matter.
1
Q: | Why is my vote important? |
A: | Because the FFN merger proposal must be approved by the affirmative vote of the holders of a majority of the outstanding shares of FFN common stock, if a FFN shareholder fails to vote on the FFN merger proposal, it will have the same effect as a vote against the FFN merger proposal. |
Similarly, because the merger agreement must be approved by the affirmative vote of the holders of a majority of the outstanding shares of MidSouth voting stock, if a MidSouth shareholder fails to vote on the merger agreement, it will have the same effect as a vote against the merger agreement.
Q: | Why is MidSouth merging with FFN? |
A: | MidSouth is merging with FFN because the boards of directors of both companies believe that the merger will provide shareholders of both companies with substantial benefits and will enable the combined company to better serve its customers. The combined company would have a presence in contiguous counties in Middle Tennessee. A detailed discussion of the background of and reasons for the proposed merger is contained under the headings Background of the Merger, FFNs Reasons for the Merger; Recommendation of the FFN Merger Proposal by the FFN Board of Directors, and MidSouths Reasons for the Merger; Recommendation of the Merger by the MidSouth Board of Directors, under FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGER. |
Q: | What will I receive in the merger? |
A: | If the merger is completed, each share of MidSouth common stock will be converted into the right to receive 0.425926 shares of FFN common stock; each share of MidSouth preferred stock will be converted into the right to receive 0.851852 shares of FFN common stock; each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50; and each option to purchase a share of MidSouth common stock will be converted into an option to purchase a share of FFN common stock multiplied by the exchange ratio of one share of MidSouth common stock equating to 0.425926 shares of FFN common stock (the Exchange Ratio) and the exercise price will become the exercise price of such option divided by the Exchange Ratio. Options to acquire MidSouth common stock that are considered qualified options will be converted into qualified options of FFN common stock and options to purchase MidSouth stock that are not qualified will be converted into non-qualified options to acquire FFN common stock. In lieu of the issuance of any fractional shares of FFN common stock, FFN will pay to each former MidSouth shareholder who would otherwise be entitled to receive such fractional share an amount in cash determined by multiplying (i) $13.50 by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of FFN common stock to which such holder would otherwise be entitled to receive. |
Each outstanding share of FFN common stock immediately prior to the merger will remain outstanding after the merger.
Q: | Will MidSouth shareholders be taxed on the FFN common stock that they receive in exchange for their MidSouth shares? |
A: | Since we believe the merger will qualify as a reorganization under Section 368(a) of the Internal Revenue Code, a MidSouth shareholder will generally not recognize any gain or loss on the conversion of shares of MidSouth common stock, preferred stock or warrants into shares of FFN common stock. Howeveer, cash paid for fractional shares and with respect to warrants, as well as cash paid for any dissenting shares, can be expected to be taxable. See FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERMaterial United States Federal Income Tax Consequences of the Merger. |
Q: | What should I do now? |
A: |
After you have carefully read this document, please vote your shares as soon as possible by completing, signing, dating, and returning the enclosed proxy in the accompanying pre-addressed postage-paid |
2
envelope so that your shares will be represented at the applicable FFN annual shareholders meeting or MidSouth special shareholders meeting. Shareholders of FFN also may vote by telephone or through the Internet. If you date, sign and send in a proxy card but do not indicate how you want to vote, your proxy will be voted in favor of approval of the merger agreement or, as to FFN, in favor of the FFN merger proposal, all of the nominees for election as directors of FFN, the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014, the amendment of FFNs 2007 Omnibus Equity Incentive Plan, and, as to both MidSouth and FFN, in favor of the proposal to adjourn the applicable FFN annual shareholders meeting or MidSouth special shareholders meeting to allow time for further solicitation of proxies in the event there are insufficient votes to approve the merger agreement or, as to FFN, the FFN merger proposal. |
Q: | If my shares are held in street name by my broker, will my broker vote my shares for me? |
A: | NOT WITH RESPECT TO THE MERGER PROPOSAL. Your broker will not vote your shares on the proposal to approve the merger agreement or the FFN merger proposal, as applicable, and the proposal to amend FFNs 2007 Omnibus Equity Incentive Plan unless you provide instructions on how to vote. You should instruct your broker how to vote your shares following the directions your broker provides. If you are a MidSouth shareholder, failure to instruct your broker how to vote your shares will be the equivalent of voting against the merger agreement. If you are a FFN shareholder, failure to instruct your broker how to vote your shares on the FFN merger proposal and the proposal to amend FFNs 2007 Omnibus Equity Incentive Plan will be the equivalent of voting against the FFN merger proposal and the amendment to FFNs 2007 Omnibus Equity Incentive Plan. |
Q: | Can I change my vote after I have submitted my proxy? |
A: | YES . If you have not voted through your broker, there are three ways you can change your vote after you have submitted your proxy: |
First, you may send a written notice to the person to whom you submitted your proxy stating that you would like to revoke your proxy.
Second, you may complete and submit a later dated proxy with new voting instructions. The latest vote actually received by your company prior to your applicable annual or special shareholders meeting will be your vote. Any earlier votes will be revoked.
Third, if you are a record shareholder, you may attend your applicable annual or special shareholders meeting and vote in person. Any earlier votes will be revoked. Simply attending your meeting without voting, however, will not revoke your proxy.
If you have instructed a broker to vote your shares, you must follow the directions you will receive from your broker to change or revoke your proxy.
Q: | Do I have the right to dissent and obtain the fair value for my shares? |
A: | Yes, if you are a MidSouth shareholder . Tennessee law permits a MidSouth shareholder to dissent from the merger and to obtain payment in cash of the fair value of his or her shares of MidSouth common stock or MidSouth preferred stock. To do this, a MidSouth shareholder must follow specific procedures, including delivering written notice of his or her intent to demand payment for his or her shares if the merger is effectuated to MidSouth before the shareholder vote on the merger agreement is taken and not voting his or her shares in favor of the merger agreement. If a MidSouth shareholder follows the required procedures, his or her only right will be to receive the fair value of his or her MidSouth common stock or preferred stock in cash. If a MidSouth shareholder thinks that he, she, or it may desire to dissent, then such person should not send in a proxy unless it is marked to vote against the merger. Copies of the applicable Tennessee statutes are attached to this joint proxy statement/prospectus as Appendix B . See FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERDissenters Rights for MidSouth Shareholders. |
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Tennessee law does not provide dissenters rights to FFNs shareholders.
Q: | Should I send in my stock certificates now? |
A: | NO . You should not send in your stock certificates at this time. Shortly after the effective time of the merger, the exchange agent will send all MidSouth shareholders written instructions for exchanging MidSouth stock certificates for FFN stock certificates. |
Q: | When do you expect to complete the merger? |
A: | We presently expect to complete the merger during the first or second quarter of 2014. However, we cannot assure you when or if the merger will occur. We must first obtain the approval of both FFN and MidSouth shareholders at their respective annual and special shareholders meeting and the necessary regulatory approvals. |
Q: | Whom should I call with questions about the merger? |
A: | FFN shareholders should call Richard E. Herrington, President and Chief Executive Officer, at (615) 236-2265. MidSouth shareholders should call Lee M. Moss, Chief Executive Officer, at (615) 278-7100. |
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This summary highlights material information regarding the merger, the FFN annual shareholders meeting and the MidSouth special shareholders meeting contained later in this joint proxy statement/prospectus. This summary does not contain all of the information that may be important to you, and we urge you to carefully read this entire document, including the exhibits and enclosures, to better understand the merger and its potential impact on you before deciding how to vote. Each item in this summary includes a page reference directing you to a more complete discussion of the item.
The Companies (page 104 for FFN and page 157 for MidSouth)
Franklin Financial Network, Inc.
722 Columbia Avenue
Franklin, Tennessee 37064
(615) 236-2265
Attention: Richard E. Herrington, President and Chief Executive Officer
FFN is a Tennessee corporation registered as a bank holding company under the Federal Reserve Act. FFN engages in a general banking business through its subsidiary, FSB, a Tennessee state bank, which commenced operations on November 5, 2007. The executive offices of FFN and FSB are located in Franklin, Tennessee. FSB has branches in the cities of Brentwood, Spring Hill and the Cool Springs, Westhaven and Berry Farms communities of Franklin, Tennessee. FSB also has a mortgage loan production office in Brentwood, Tennessee.
MidSouth Bank
One East College Street
Murfreesboro, TN 37130
(615) 278-7100
Attention: Lee M. Moss, Chief Executive Officer
MidSouth opened as a full-service commercial bank in January 2004. Its principal business activity is providing banking services to Rutherford County and surrounding areas in the Nashville-Davidson-Murfreesboro-Franklin, Tennessee Metropolitan Statistical Area. The principal executive offices of MidSouth are located in Murfreesboro, Tennessee.
The Merger (page 78)
Under the terms of the merger agreement, MidSouth will merge with and into FSB, with FSB as the surviving Tennessee banking corporation. Both FFN and FSB will continue their existence under Tennessee law, while MidSouth will cease to exist. The merger agreement is attached as Appendix A and is incorporated into this joint proxy statement/prospectus by reference. We encourage you to read the merger agreement carefully as it is the legal document that governs the merger.
What MidSouth Shareholders Will Receive in the Merger (page 78)
If the merger is completed, each share of MidSouth common stock will be converted into the right to receive 0.425926 shares of FFN common stock; each share of MidSouth preferred stock will be converted into the right to receive 0.851852 shares of FFN common stock; each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50; and each option to purchase a share of MidSouth common stock will be converted into an option to purchase a share of FFN common stock multiplied by the exchange ratio of one share of MidSouth common stock equating to 0.425926 shares of FFN common stock (the Exchange Ratio) and the exercise price will become the exercise price of such option divided by the Exchange Ratio. Options to acquire MidSouth common stock that are considered qualified options will be converted into qualified options of FFN common stock and options to purchase MidSouth stock that are not qualified will be converted into non-qualified options to acquire FFN common stock. In lieu of the issuance of any fractional shares of FFN common stock, FFN will pay to each former MidSouth shareholder who would otherwise be entitled to
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receive such fractional share an amount in cash determined by multiplying (i) $13.50 by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of FFN common stock to which such holder would otherwise be entitled to receive.
Regulatory Approvals (page 64)
For the merger of MidSouth with and into FSB, we must obtain approval from the Federal Reserve Board (the FRB) and from the Tennessee Department of Financial Institutions (TDFI). FFN and MidSouth received approval from the FRB on January 28, 2014. As of the date of this joint proxy statement/prospectus, FFN and MidSouth have not received approval from the TDFI.
FFNs Annual Shareholders Meeting (page 38)
FFN will hold its annual shareholders meeting on , 2014, at .m., local time at 722 Columbia Avenue, Franklin, Tennessee.
FFNs Record Date and Voting (pages 38-40)
If you owned shares of FFN common stock at the close of business on , 2014, the record date for the FFN annual shareholders meeting, you are entitled to vote on the FFN merger proposal, the election of seven directors to serve until the 2015 annual meeting of shareholders, the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014, the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000, the authorization of the board of directors to adjourn the annual shareholders meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the annual shareholders meeting, in person or by proxy, to approve any of the matters to be considered at the annual meeting, as well as any other matters considered at the annual shareholders meeting. On the record date, there were shares of FFN common stock outstanding. You will have one vote at the meeting for each share of FFN common stock you owned on the record date.
Approval of the FFN merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of FFN common stock entitled to vote at the annual shareholders meeting. Directors will be elected by a plurality of the votes cast by holders of shares entitled to vote at the annual meeting. Approval of each of the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014, the amendment of FFNs 2007 Omnibus Equity Incentive Plan and the proposal to authorize adjournment requires the affirmative vote of the holders of a majority of shares of common stock present in person or by proxy and entitled to vote on such matters. As of , 2014, FFNs current directors, executive officers, and their affiliates beneficially owned approximately % of the outstanding shares of common stock.
MidSouths Special Shareholders Meeting (page 38)
MidSouth will hold its special shareholders meeting on , 2014, at .m., local time at One East College Street, Murfreesboro, Tennessee.
MidSouths Record Date and Voting (pages 38-40)
If you owned shares of MidSouth common stock or preferred stock at the close of business on , 2014, the record date for the MidSouth special shareholders meeting, you are entitled to vote on the merger agreement as well as any other matters considered at the special shareholders meeting. On the record date, there were shares of MidSouth voting stock outstanding. You will have one vote at the meeting for each share of MidSouth voting stock you owned on the record date. Approval of the merger agreement requires the affirmative vote of the holders of a majority of the outstanding shares of the MidSouth voting stock entitled to vote at the special shareholders meeting. Approval of the proposal to authorize adjournment will require the affirmative vote of a majority of shares of MidSouth voting stock present in person or by proxy and entitled to vote on the matter. As of , 2014, MidSouths directors and executive officers and their affiliates beneficially owned approximately % of the outstanding shares of MidSouth voting stock.
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FFNs Board of Directors Unanimously Recommends that FFN Shareholders Vote FOR the Approval of the FFN Merger Proposal (page 41)
FFNs board of directors has determined that the FFN merger proposal is advisable and in the best interests of FFN and its shareholders and has unanimously approved the merger agreement. FFNs board of directors unanimously recommends that FFN shareholders vote FOR the approval of the FFN merger proposal. For the factors considered by FFNs board of directors in reaching its decision to approve the FFN merger proposal, see FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERFFNs Reasons for the FFN Merger Proposal; Recommendation of the FFN Merger Proposal by the FFN Board of Directors.
MidSouths Board of Directors Unanimously Recommends that MidSouth Shareholders Vote FOR the Approval of the Merger Agreement (page 42)
MidSouths board of directors has determined that the merger, the merger agreement and the transactions contemplated by the merger agreement are advisable and in the best interests of MidSouth and its shareholders and has adopted the merger agreement. MidSouths board of directors recommends that MidSouth shareholders vote FOR the approval of the merger agreement. For the factors considered by MidSouths board of directors in reaching its decision to adopt the merger agreement, see FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERMidSouths Reasons for the Merger; Recommendation of the Merger by the MidSouth Board of Directors.
Interests of Directors and Officers of MidSouth that Differ from Your Interests (page 63)
When considering whether to approve the merger agreement, you should be aware that some directors and officers of MidSouth have interests in the merger that differ from the interests of other MidSouth shareholders, including the following:
| Following the merger, FFN will generally indemnify and provide liability insurance to the present directors and officers of MidSouth; |
| Following the merger, the FFN board of directors will appoint three members of the MidSouth board of directors to serve as members of the FFN board of directors until they are submitted for election by the shareholders of FFN. These three former MidSouth directors will be eligible for election onto the FFN board of directors at the next annual meeting of the FFN shareholders. |
| Lee M. Moss will enter into an employment agreement, confidentiality, non-competition agreement and non-solicitation agreement and retention bonus agreement with FFN. The terms of these agreements are summarized on pages 63-64; |
| Kevin D. Busbey will enter into an employment agreement, confidentiality, non-competition agreement and non-solicitation agreement and retention bonus agreement with FFN. The terms of these agreements are summarized on pages 63-64; |
| Dallas G. Caudle will enter into an employment agreement, confidentiality, non-competition agreement and non-solicitation agreement and retention bonus agreement with FFN. The terms of these agreements are summarized on pages 63-64; and |
| D. Edwin Jernigan, Jr. will enter into a retention bonus agreement and stock option award agreement with FFN. The terms of these agreements are summarized on pages 63-64. |
Each MidSouth board member was aware of these and other interests and considered them before approving and adopting the merger agreement.
Federal Income Tax Consequences (page 74)
If the merger qualifies as a reorganization under Section 368(a) of the Internal Revenue Code, a MidSouth shareholder will generally not recognize any gain or loss on the conversion of shares of MidSouth common stock,
7
preferred stock or warrants into shares of FFN common stock. FFN shareholders will have no direct tax consequences as a result of the merger. Tax matters are complicated, and the tax consequences of the merger may vary among MidSouth shareholders. We urge each MidSouth shareholder to contact his or her own tax advisor to fully understand the tax implications of the merger.
Comparative Rights of Shareholders (page 103)
The rights of MidSouths shareholders are currently governed by Tennessee corporate law and MidSouths charter and bylaws. The rights of FFNs shareholders are currently governed by Tennessee corporate law and FFNs charter and bylaws. Upon consummation of the merger, the shareholders of MidSouth will become shareholders of FFN, and the charter and bylaws of FFN, as well as Tennessee corporate law, will govern their rights. FFNs charter and bylaws differ somewhat from those of MidSouth.
Termination of the Merger Agreement and Termination Fee (page 84)
Notwithstanding the approval of the merger agreement by MidSouth shareholders and the FFN merger proposal by FFN shareholders, the parties can mutually agree at any time to terminate the merger agreement before completing the merger.
Either FFN or MidSouth can also terminate the merger agreement:
| if any request or application for a required regulatory approval is denied by the governmental entity which must grant such approval and such denial has become final and non-appealable, or a governmental entity has issued an order, decree, or ruling to permanently prohibit the merger and such prohibition has become final and non-appealable, except that no party may so terminate the merger agreement if the denial is a result of the failure of such party to the merger agreement; |
| if any governmental entity of competent jurisdiction has issued a final non-appealable order enjoining or otherwise prohibiting the merger; |
| if the merger is not completed on or before June 30, 2014, unless the failure of the closing to occur by this date is due to the failure of the party seeking to terminate the merger agreement to comply with the merger agreement or the failure to close by such date is caused by regulatory, including the Securities and Exchange Commission, or court delays outside the control of the parties; |
| if any approval of the shareholders of FFN or MidSouth required for completion of the merger has not been obtained upon a vote taken at a duly held meeting of shareholders or at any adjournment or postponement thereof provided the party seeking to terminate the merger agreement has complied with the requirements in the merger agreement to call a meeting of shareholders and recommend approval of the merger agreement; |
| if (1) the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained in the merger agreement and (2) there has been a breach of any of the covenants, agreements, representations or warranties of the other party in the merger agreement, which breach is not cured within 30 days following written notice to the party committing the breach, or which breach, by its nature, cannot be cured prior to the closing date of the merger, and which breach, individually or together with all other breaches, would, if occurring or continuing on the closing date, result in the failure of the condition relating to the performance of obligations or breaches of representations or warranties; or |
| if (1) the board of directors of the other does not publicly recommend that its shareholders either approve the merger agreement, (2) after recommending that such shareholders approve the merger agreement, such board of directors has withdrawn, modified or amended such recommendation in any manner adverse to the other party, or (3) the other party materially breaches its obligations under the merger by reason of a failure to call a meeting of its shareholders or a failure to prepare and mail to its shareholders this document. |
8
FFN can terminate the merger agreement if MidSouths board of directors authorizes, recommends, proposes or publicly announces its intention to authorize, recommend or propose an acquisition proposal with any person other than FFN.
FFN and MidSouth may each terminate the merger agreement at any time upon the payment of liquidated damages of $1.5 million.
Accounting Treatment (page 77)
FFN will account for the merger using the acquisition method of accounting. For accounting purposes, the cost of the acquired entity (MidSouth) will be allocated to consolidated tangible and intangible assets and liabilities based on their estimated fair value on the date that the share exchange is completed. Any excess cost will be allocated to goodwill. The financial statements of FFN issued after the merger will reflect the results attributable to the acquired operations of the two banks beginning on the date of completion of the share exchange. The unaudited per share pro forma financial information contained herein has been prepared using the acquisition method of accounting.
Market and Dividend Information (pages 95, 99)
FFNs common stock is not currently listed or traded on any securities exchange or quotation system. Neither the common stock nor the preferred stock of MidSouth is listed or traded on any securities exchange or quotation system.
The ability of FFN to pay dividends is highly dependent on FSBs ability to pay dividends and may be limited based upon restrictions of the Small Business Lending Fund. The likelihood of FFN declaring dividends to its shareholders is contingent on the anticipated growth and capital preservation strategy to maintain a strong capital level for both FSB and FFN. As a result, FFN cannot project or guarantee when dividends will be declared in the future.
Resale of FFN Common Stock (page 78)
The shares of FFN common stock to be issued to the shareholders of MidSouth in connection with the merger will be freely tradable by such shareholders, except that if any MidSouth shareholders are deemed to be affiliates of FFN, they must abide by certain transfer restrictions under the Securities Act of 1933, as amended (the Securities Act).
Dissenters Rights (page 71)
Under Tennessee law, holders of MidSouth common stock and preferred stock will be entitled to dissent from the merger and to obtain payment in cash of the fair value of his or her shares of MidSouth common stock or preferred stock. Set forth below is a summary of the procedures that must be followed by the holders of MidSouth common stock and preferred stock in order to exercise their dissenters rights. This summary is qualified in its entirety by reference to the text of the applicable Tennessee statutes, a copy of which are attached to this joint proxy statement/prospectus as Appendix B .
A record holder of MidSouth common stock or preferred stock who wishes to assert dissenters rights (i) must deliver to MidSouth, before the vote on the merger agreement is taken, written notice of his or her intent to demand payment for his or her shares if the merger is effectuated and (ii) must not vote his or her shares in favor of the merger agreement.
If the merger is approved at the MidSouth special shareholders meeting, MidSouth will deliver, no later than 10 days after the date that the merger is completed, a written dissenters notice to all MidSouth shareholders who satisfied the two requirements set forth above. The written dissenters notice will state where the payment demand must be sent and where and when stock certificates must be deposited and will set a date by which MidSouth must receive the payment demand, which date will not be less than one nor more than two months after the written dissenters notice is delivered. A dissenting shareholder who does not demand payment or deposit his or her share certificate as required by the dissenters notice will not be entitled to payment for his or her shares, and such shareholders shares of MidSouth stock will be converted into the right to receive the merger consideration in connection with the merger.
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Within 10 days of the later of the date of the merger or receipt of a payment demand, MidSouth will, by written notice, offer to pay to each dissenting shareholder who properly demanded payment the amount MidSouth estimates to be the fair value of his or her shares, plus accrued interest. If the shareholder believes that the amount offered is less than the fair value of his shares or that the interest is incorrectly calculated, the shareholder may notify MidSouth in writing of his own estimate of the fair value of his shares and the amount of interest due and demand payment of his estimate. If a demand for payment remains unsettled, MidSouth will commence a court proceeding to determine the fair value of the shares and the accrued interest.
Exercise of dissenters rights by holders of MidSouth common stock or preferred stock will result in the recognition of gain or loss, as the case may be, for federal income tax purposes.
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SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF FRANKLIN FINANCIAL NETWORK, INC.
The following selected historical consolidated financial data as of and for the years ended December 31, 2012 and 2011, is derived from the audited consolidated financial statements of Franklin Financial Network, Inc. (FFN or the Corporation). The following selected historical consolidated financial data as of and for the nine months ended September 30, 2013 and 2012, is derived from the unaudited consolidated financial statements of FFN and has been prepared on the same basis as the selected historical consolidated financial data derived from the audited consolidated financial statements and, in the opinion of FFNs management, reflects all adjustments, consisting only of normal recurring adjustments, necessary for a fair presentation of this data for those dates.
The results of operations as of and for the nine months ended September 30, 2013, are not necessarily indicative of the results that may be expected for the twelve months ending December 31, 2013 or any future period. You should read the following selected historical consolidated financial data in conjunction with FFNs Managements Discussion and Analysis of Financial Condition and Results of Operations, audited consolidated financial statements and accompanying notes for the year ended December 31, 2012, and unaudited consolidated financial statements and accompanying notes for the nine months ended September 30, 2013, each of which are included elsewhere in this joint proxy statement/prospectus.
(amounts are in thousands, except ratios, per share data, banking locations and FTEs)
(unaudited)
Nine months ended September 30, |
Year ended December 31, | |||||||||||||||
2013 | 2012 | 2012 | 2011 | |||||||||||||
SUMMARY OF OPERATIONS: |
||||||||||||||||
Total interest income |
$ | 17,551 | $ | 14,716 | $ | 20,004 | $ | 16,092 | ||||||||
Total interest expense |
(2,894 | ) | (3,046 | ) | (4,048 | ) | (3,956 | ) | ||||||||
Net interest income |
14,657 | 11,670 | 15,956 | 12,136 | ||||||||||||
Provision for loan losses |
(457 | ) | (1,316 | ) | (1,548 | ) | (680 | ) | ||||||||
Net interest income after provision for loan losses |
14,200 | 10,354 | 14,408 | 11,456 | ||||||||||||
Non-interest income |
5,432 | 5,658 | 8,645 | 4,460 | ||||||||||||
Non-interest expense |
(14,529 | ) | (12,019 | ) | (16,857 | ) | (13,651 | ) | ||||||||
Income before income taxes |
5,103 | 3,993 | 6,196 | 2,265 | ||||||||||||
Income tax expense |
(1,945 | ) | (1,399 | ) | (2,056 | ) | (111 | ) | ||||||||
Net income |
3,158 | 2,594 | 4,140 | 2,154 | ||||||||||||
Preferred stock dividend requirement |
83 | 410 | 458 | | ||||||||||||
Net income available to common shareholders |
$ | 3,075 | $ | 2,184 | $ | 3,682 | $ | 2,154 |
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(1) | Efficiency ratio is non-interest expense divided by the sum of net interest income before the provision for loan losses plus non-interest income. |
(2) | Net interest margin is net interest income (annualized for interim periods) divided by total average earning assets. |
(3) | Net interest spread is the difference between the average yield on interest-earning assets and the average yield on interest-bearing liabilities. |
(4) | Period end loans exclude loans held for sale and exclude deferred fees and costs. |
(5) | Capital ratios calculated on consolidated financial statements as of 9/30/2013. Prior capital ratios calculated on bank-only data. |
SELECTED CONSOLIDATED FINANCIAL INFORMATION OF MIDSOUTH
(In Thousands, Except Per Share Data and Percentages)
13
UNAUDITED PRO FORMA COMBINED CONSOLIDATED FINANCIAL INFORMATION
The following unaudited pro forma combined consolidated financial information and accompanying notes show the impact on the historical financial conditions and results of operations of Franklin Financial Network, Inc. (FFN) and MidSouth Bank (MidSouth) and have been prepared to illustrate the effects of the merger under the acquisition method of accounting. See The MergerAccounting Treatment.
The unaudited pro forma combined consolidated balance sheet as of September 30, 2013, is presented as if the merger had occurred on September 30, 2013. The unaudited pro forma combined consolidated income statements for the year ended December 31, 2012, and the nine months ended September 30, 2013, are presented as if the merger had occurred on January 1, 2012. The historical consolidated financial information has been adjusted to reflect factually supportable items that are directly attributable to the merger and, with respect to the income statements only, expected to have a continuing impact on consolidated results of operations.
The selected unaudited pro forma combined consolidated financial statements are provided for informational purposes only. The unaudited pro forma combined consolidated financial statements are not necessarily, and should not be assumed to be, an indication of the results that would have been achieved had the merger been completed as of the dates indicated or that may be achieved in the future. The preparation of the unaudited pro forma combined consolidated financial statements and related adjustments required management to make certain assumptions and estimates. The unaudited pro forma combined consolidated financial statements should be read together with:
| the accompanying notes to the unaudited pro forma combined consolidated financial statements; |
14
| FFNs audited consolidated financial statements and accompanying notes as of and for the year ended December 31, 2012, included elsewhere in this joint proxy statement/prospectus; |
| MidSouth Banks audited consolidated financial statements and accompanying notes as of and for the year ended December 31, 2012, included elsewhere in this joint proxy statement/prospectus; |
| FFNs unaudited condensed consolidated financial statements and accompanying notes as of and for the nine months ended September 30, 2013, included elsewhere in this joint proxy statement/prospectus; and |
| MidSouth Banks unaudited consolidated financial statements and accompanying notes as of and for the nine months ended September 30, 2013, included elsewhere in this joint proxy statement/prospectus; |
| other information pertaining to FFN and MidSouth included in this joint proxy statement/prospectus. |
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Unaudited Pro Forma Combined Consolidated Balance Sheet
September 30, 2013
(in thousands)
FFN
Sept 30, 2013 as reported |
MidSouth
Sept 30, 2013 as reported |
Pro Forma
adjustments |
Pro Forma
Sept 30, 2013 combined |
|||||||||||||||
Assets: |
||||||||||||||||||
Cash and cash equivalents |
$ | 16,390 | $ | 17,153 | $ | (1,800 | ) | g | $ | 31,743 | ||||||||
Investment securities available-for-sale, fair value |
188,092 | 73,086 | 261,178 | |||||||||||||||
Investment securities held-to-maturity, amortized cost |
49,133 | | 49,133 | |||||||||||||||
Loans held for sale |
9,518 | 1,558 | 11,076 | |||||||||||||||
Loans |
377,910 | 154,981 | (5,855 | ) | a | 527,036 | ||||||||||||
Allowance for loan losses |
(4,432 | ) | (2,860 | ) | 2,860 | c | (4,432 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Net loans |
373,478 | 152,121 | (2,995 | ) | 522,604 | |||||||||||||
Bank premises and equipment, net |
3,430 | 8,653 | (200 | ) | d | 11,883 | ||||||||||||
Other real estate owned |
761 | 800 | (105 | ) | a | 1,456 | ||||||||||||
Goodwill |
157 | | 5,389 | e | 5,546 | |||||||||||||
Core deposit intangibles |
| | 3,411 | a | 3,411 | |||||||||||||
Prepaid and other assets |
18,946 | 7,658 | 5,573 | b | 32,177 | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total Assets |
$ | 659,905 | $ | 261,029 | $ | 9,273 | $ | 930,207 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Liabilities and Shareholders Equity: |
||||||||||||||||||
Liabilities: |
||||||||||||||||||
Deposits noninterest-bearing |
$ | 59,329 | $ | 44,968 | $ | 104,297 | ||||||||||||
Deposits interest-bearing |
464,345 | 186,476 | 302 | a | 651,123 | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total deposits |
523,674 | 231,444 | 302 | 755,420 | ||||||||||||||
Other borrowings |
69,046 | 626 | 69,672 | |||||||||||||||
Payables and other liabilities |
3,052 | 966 | 4,018 | |||||||||||||||
|
|
|
|
|
|
|||||||||||||
Total liabilities |
595,772 | 233,036 | 829,110 | |||||||||||||||
Shareholders Equity: |
||||||||||||||||||
Preferred Stock |
10,000 | 1,260 | (1,260 | ) | h | 10,000 | ||||||||||||
Common Stock |
49,429 | 3,872 | 34,142 | f,h | 87,443 | |||||||||||||
Additional paid-in capital |
696 | 39,845 | (39,845 | ) | h | 696 | ||||||||||||
Retained earnings |
5,681 | (16,018 | ) | 14,968 | g,h | 4,631 | ||||||||||||
Accumulated other comprehensive income (loss) |
(1,673 | ) | (966 | ) | 966 | h | (1,673 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total shareholders equity |
64,133 | 27,993 | 8,971 | 101,097 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||
Total Liabilities and Shareholders Equity |
$ | 659,905 | $ | 261,029 | $ | 9,273 | $ | 930,207 | ||||||||||
|
|
|
|
|
|
|
|
See accompanying notes to Unaudited Pro Forma Combined Consolidated Financial Information
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Unaudited Pro Forma Combined Consolidated Statement of Income
For the Nine Month Period Ended September 30, 2013
(in thousands, except per share data)
FFN
Sept 30, 2013 as reported |
MidSouth
Sept 30, 2013 as reported |
MidSouth
account reclass |
Pro Forma
Adjustments |
Pro Forma
Sept 30, 2013 Combined |
||||||||||||||||||||||||
Interest income: |
||||||||||||||||||||||||||||
Loans, including fees |
$ | 14,434 | $ | 6,153 | $ | | $ | 496 | b | $ | 21,083 | |||||||||||||||||
Investment securities |
3,082 | 986 | | | 3,977 | |||||||||||||||||||||||
Federal funds sold and other |
35 | 108 | | | 234 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total interest income |
17,551 | 7,247 | | 496 | 25,294 | |||||||||||||||||||||||
Interest expense: |
||||||||||||||||||||||||||||
Deposits |
2,733 | 696 | | | c | 3,429 | ||||||||||||||||||||||
Other borrowings |
161 | 1 | | | 162 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total interest expense |
2,894 | 697 | | | 3,324 | |||||||||||||||||||||||
Net interest income |
14,657 | 6,550 | | 496 | 21,703 | |||||||||||||||||||||||
Provision for loan losses |
457 | | | | 457 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Net interest income after loan loss provision |
14,200 | 6,550 | | 496 | 21,246 | |||||||||||||||||||||||
Non-interest income: |
||||||||||||||||||||||||||||
Service charges on deposit accounts and other fees |
907 | 796 | | | 1,703 | |||||||||||||||||||||||
Net gain on sale of loans |
3,611 | 1,161 | 336 | z | | 5,108 | ||||||||||||||||||||||
Gain on sale of investment securities, net |
78 | | (6 | ) | y | | 72 | |||||||||||||||||||||
Other |
836 | 495 | | | 1,331 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total non-interest income |
5,432 | 2,452 | 330 | | 8,214 | |||||||||||||||||||||||
Non-interest expense: |
||||||||||||||||||||||||||||
Salaries and employee benefits |
9,830 | 4,316 | | | 14,146 | |||||||||||||||||||||||
Occupancy and equipment |
1,990 | 843 | | | 2,833 | |||||||||||||||||||||||
All other expenses |
2,709 | 2,361 | 330 | 256 | a | 5,656 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total non-interest expense |
14,529 | 7,520 | 330 | 256 | 22,635 | |||||||||||||||||||||||
Income before income tax expense |
5,103 | 1,482 | | 240 | 6,825 | |||||||||||||||||||||||
Income tax expense |
1,945 | | | 659 | d | 2,696 | ||||||||||||||||||||||
|
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|
|
|
|
|
|
|
|
|||||||||||||||||||
Net income |
3,158 | 1,482 | | (419 | ) | 4,129 | ||||||||||||||||||||||
Dividends paid on Series A preferred stock |
(83 | ) | | | | (83 | ) | |||||||||||||||||||||
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|
|
|
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|
|
|
|||||||||||||||||||
Net income available to common shareholders |
$ | 3,075 | $ | 1,482 | | (419 | ) | $ | 4,046 | |||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||
Basic earnings available to common shareholders per share |
$ | 0.84 | $ | 0.38 | $ | 0.63 | ||||||||||||||||||||||
Diluted earnings available to common shareholders per share |
$ | 0.82 | $ | 0.23 | $ | 0.62 | ||||||||||||||||||||||
Weighted average common shares outstanding: |
||||||||||||||||||||||||||||
Basic |
3,656 | 3,864 | 6,420 | |||||||||||||||||||||||||
Diluted |
3,750 | 6,496 | 6,560 |
See accompanying notes to Unaudited Pro Forma Combined Consolidated Financial Information
17
Unaudited Pro Forma Combined Consolidated Statement of Income
For the Year ended December 31, 2012
(in thousands, except per share data)
FFN
Dec 31, 2012 as reported |
MidSouth
Dec 31, 2012 as reported |
MidSouth
account reclass |
Pro Forma
adjustments |
Pro Forma
Dec 31, 2012 Combined |
||||||||||||||||||||||||
Interest income: |
||||||||||||||||||||||||||||
Loans, including fees |
$ | 16,262 | $ | 7,992 | $ | | $ | 661 | b | $ | 24,915 | |||||||||||||||||
Investment securities |
3,688 | 1,462 | | | 5,150 | |||||||||||||||||||||||
Federal funds sold and other |
54 | 120 | | | 174 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||||||||||
Total interest income |
20,004 | 9,574 | | 661 | 30,239 | |||||||||||||||||||||||
Interest expense: |
||||||||||||||||||||||||||||
Deposits |
3,917 | 1,224 | | (302 | ) | c | 4,839 | |||||||||||||||||||||
Other borrowings |
131 | 7 | | | 138 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total interest expense |
4,048 | 1,231 | | (302 | ) | 4,977 | ||||||||||||||||||||||
Net interest income |
15,956 | 8,343 | | 963 | 25,262 | |||||||||||||||||||||||
Provision for loan losses |
1,548 | (470 | ) | | | 1,078 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Net interest income after loan loss provision |
14,408 | 8,813 | | 963 | 24,184 | |||||||||||||||||||||||
Non-interest income: |
||||||||||||||||||||||||||||
Service charges on deposit accounts and other fees |
1,035 | 1,006 | | | 2,041 | |||||||||||||||||||||||
Net gain on sale of loans |
5,550 | 642 | 106 | z | | 6,298 | ||||||||||||||||||||||
Gain on sale of investment securities, net |
991 | 11 | | | 1,002 | |||||||||||||||||||||||
Other |
1,069 | 592 | | | 1,661 | |||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total non-interest income |
8,645 | 2,251 | 106 | | 11,002 | |||||||||||||||||||||||
Non-interest expense: |
||||||||||||||||||||||||||||
Salaries and employee benefits |
11,020 | 4,856 | | | 15,876 | |||||||||||||||||||||||
Occupancy and equipment |
2,496 | 1,120 | | | 3,616 | |||||||||||||||||||||||
All other expenses |
3,341 | 3,487 | 106 | 341 | a | 7,275 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Total non-interest expense |
16,857 | 9,463 | 106 | 341 | 26,767 | |||||||||||||||||||||||
Income before income tax expense |
6,196 | 1,601 | | 622 | 8,419 | |||||||||||||||||||||||
Income tax expense |
2,056 | | | 851 | d | 2,907 | ||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Net income |
4,140 | 1,601 | | (229 | ) | 5,512 | ||||||||||||||||||||||
Dividends paid on Series A preferred stock |
(458 | ) | | | | (458 | ) | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Net income available to common shareholders |
$ | 3,682 | $ | 1,601 | | (229 | ) | $ | 5,054 | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
Basic earnings available to common shareholders per share |
$ | 1.03 | $ | 0.42 | $ | 0.80 | ||||||||||||||||||||||
Diluted earnings available to common shareholders per share |
$ | 1.02 | $ | 0.24 | $ | 0.77 | ||||||||||||||||||||||
Weighted average common shares outstanding: |
||||||||||||||||||||||||||||
Basic |
3,561 | 3,853 | 6,325 | |||||||||||||||||||||||||
Diluted |
3,624 | 6,553 | 6,427 |
See accompanying notes to Unaudited Pro Forma Combined Consolidated Financial Information.
18
NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(all amounts are in thousands, except per share data, unless otherwise indicated)
Note 1 Basis of Pro Forma Presentation
The unaudited pro forma combined balance sheet as of September 30, 2013, and the unaudited pro forma combined income statements for the nine months ended September 30, 2013, and the year ended December 31, 2012, are based on the historical financial statements of FFN and MidSouth after giving effect to the completion of the merger and the assumptions and adjustments described in the accompanying notes. Such financial statements do not reflect cost savings or operating synergies expected to result from the merger, or the costs to achieve these cost savings or operating synergies, or any anticipated disposition of assets that may result from the integration of the operations of the two companies. Certain historical financial information has been reclassified to conform to the current presentation.
The transaction will be accounted for under the acquisition method of accounting in accordance with Accounting Standards Codification (ASC) Topic 805, Business Combinations (ASC 805). In business combination transactions in which the consideration given is not in the form of cash (that is, in the form of non-cash assets, liabilities incurred, or equity interests issued), measurement of the acquisition consideration is based on the fair value of the consideration given or the fair value of the asset (or net assets) acquired, whichever is more clearly evident and, thus, more reliably measurable.
Under ASC 805, all of the assets acquired and liabilities assumed in a business combination are recognized at their acquisition-date fair value, while transaction costs and restructuring costs associated with the business combination are expensed as incurred. The excess of the acquisition consideration over the fair value of assets acquired and liabilities assumed, if any, is allocated to goodwill. Changes in deferred tax asset valuation allowances and income tax uncertainties after the acquisition date generally affect income tax expense. Subsequent to the completion of the merger, FFN and MidSouth will finalize an integration plan, which may affect how the assets acquired, including intangible assets, will be utilized by the combined company. For those assets in the combined company that will be phased out or will no longer be used, additional amortization, depreciation and possibly impairment charges will be recorded after management completes the integration plan.
The unaudited pro forma information is presented solely for informational purposes and is not necessarily indicative of the combined results of operations or financial position that might have been achieved for the periods or dates indicated, nor is it necessarily indicative of the future results of the combined company.
Note 2 Preliminary Estimated Acquisition Consideration
Under the terms of the Merger Agreement, MidSouth shareholders will be entitled to receive 0.425926 shares of FFN common stock for each common share of MidSouth Bank and 0.851852 shares of FFN common stock for each share of MidSouth Bank preferred stock. Each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50. Cash will be paid only to the extent of fractional shares resulting from the exchange rate provided in the merger agreement and any MidSouth shareholders that properly dissent from the merger. No significant cash will be paid to MidSouth shareholders as a result of the merger.
Based on MidSouths estimate of shares of MidSouth common stock, preferred stock, and warrants outstanding as of September 30, 2013, the preliminary estimated acquisition consideration is as follows.
Number of
MidSouth shares outstanding |
Per share
exchange ratio |
Number of FFN
shares as exchanged |
||||||||||
Common Shares |
3,872 | 0.425926 | 1,649 | |||||||||
Convertible Voting Preferred Stock, 2009-A |
1,018 | 0.851852 | 867 | |||||||||
Convertible Voting Preferred Stock, 2011-A |
242 | 0.851852 | 206 | |||||||||
Series 2009-A Stock Warrants (strike price $3.29) |
194 | 0.182222 | 35 | |||||||||
Series 2011-A Stock Warrants (strike price $3.72) |
44 | 0.150370 | 7 | |||||||||
|
|
|||||||||||
2,764 | ||||||||||||
Multiplied by FFN common stock price on September 30, 2013 |
|
$ | 13.50 | |||||||||
|
|
|||||||||||
Estimated fair value of FFN common stock issued (Stock Consideration) |
|
$ | 37,314 | |||||||||
Preliminary fair value estimate of current MidSouth stock options to be converted to FFN stock options |
|
$ | 700 | |||||||||
|
|
|||||||||||
Total Preliminary Estimated Acquisition Consideration |
|
$ | 38,014 | |||||||||
|
|
19
Note 3 Preliminary Unaudited Pro Forma and Acquisition Accounting Adjustments
The unaudited pro forma financial information is not necessarily indicative of what the financial position actually would have been had the merger been completed at the date indicated. Such information includes adjustments which are preliminary and may be revised. Such revisions may result in material changes. The financial position shown herein is not necessarily indicative of what the past financial position of the combined companies would have been, nor necessarily indicative of the financial position of the post-merger periods. The unaudited pro forma financial information does not give consideration to the impact of possible cost savings, expense efficiencies, synergies, strategy modifications, asset dispositions or other actions that may result from the merger.
The following unaudited pro forma adjustments result from accounting for the merger, including the determination of fair value of the assets, liabilities, and commitments which FFN, as the acquirer, will acquire from MidSouth. The descriptions related to these preliminary adjustments are as follows.
Balance Sheet the explanations and descriptions below are referenced to the September 30, 2013 Unaudited Pro Forma Combined Consolidated Balance Sheet.
Pro Forma Adjusting entries (Balance Sheet): | Debit | Credit | ||||||
a Loans |
5,855 | |||||||
a Other real estate |
105 | |||||||
a Core deposit premium |
3,411 | |||||||
a Deposits interest-bearing |
302 | |||||||
b Deferred tax assets |
5,573 | |||||||
c Allowance for loan losses |
2,860 | |||||||
d Fixed assets |
200 | |||||||
e Goodwill |
5,389 | |||||||
f Common stock |
38,014 | |||||||
g Cash |
1,800 | |||||||
g Retained earnings |
1,800 | |||||||
h Preferred stock |
1,260 | |||||||
h Common stock |
3,872 | |||||||
h Additional paid-in capital |
39,845 | |||||||
h Retained earnings |
16,768 | |||||||
h Other comprehensive income |
966 | |||||||
|
|
|
|
|||||
64,010 | 64,010 |
a | Adjustments to mark acquired assets and assumed liabilities to estimated fair market value at September 30, 2013. Management engaged a third party to assist FFN with valuation estimates. All such estimates are subject to change as fair value estimates are refined. Preliminary valuation adjustments are estimated as follows: |
| Adjustment to intangibles for a core deposit premium of $3,411. |
| Adjustment to loans of ($5,855), which includes an interest rate component and a credit component, to estimate fair value. This estimate, provided by the third party, includes an analysis of expected cash flows and differs from the allowance for loan losses for MidSouth, which estimates probable loan losses incurred as of the balance sheet date. The expected cash flow approach considers losses expected over the assumed life of the portfolio as a result of future events and other factors, as compared to the probable incurred loss model used to record the allowance for loan losses under generally accepted accounting principles. The fair value estimate related to loans included in the pro forma adjustments considers an estimate for loans with evidence of deteriorated credit quality since origination, expected credit losses over the estimated life of the loan portfolio, as well as a present value of expected cash flows discounted using current market rates for similar lending arrangements. |
| Credit adjustment to the other real estate portfolio of ($105). |
| Adjustment to time deposits of $302. |
b | Recording of deferred tax asset arising from the merger and expected to be realized by FFN as timing differences and net operating loss carryovers reverse through regular combined operations. |
20
c | Adjustment to allowance for loan losses to reflect the reversal of MidSouths allowance for loan and lease losses, as the credit risk is contemplated in the fair value adjustment to loans noted above. |
d | Estimated fair value adjustment on net book value property held by MidSouth. |
e | Adjustment to goodwill to reflect the preliminary estimated goodwill generated as a result of consideration paid in excess of the fair value of the net assets acquired. |
f | Preliminary common stock consideration to be issued to MidSouth shareholders. See Note 2 above. |
g | Estimated transaction costs incurred prior to the date of the merger. The estimated amount to be paid by FFN is approximately $1,050 and MidSouth is approximately $750 related to investment banker, legal, accounting, and data conversion costs. |
h | Adjustment to reflect the reversal of MidSouths common equity. Retained earnings reflects estimated $750 transaction costs related to the merger. |
Income Statements the explanations and descriptions below are referenced to the Unaudited Pro Forma Combined Consolidated Statements of Income for the nine months ended September 30, 2013 and for the year ended December 31, 2012.
Income Statements reclassifications
The following reclassifications adjusted MidSouths historical income statements to conform to MidSouths historical income statements.
y | A loss on the sale of investment securities included in MidSouths all other expenses for the nine months ending September, 2013, has been reclassified to Gain on sale of investment securities, net, to conform to FFNs historical income statement. |
z | Mortgage origination expense netted against fees on mortgage originations in MidSouths non-interest incomes have been reclassified to All other expenses to conform to FFNs historical income statement. |
Income Statements Pro Forma Adjustments
Pro Forma Adjusting entries (Income Statements) |
Nine months
Ended Sept 30, 2013 |
Year
Ended Dec 31, 2012 |
||||||
a Amortization expense of core deposit intangible |
256 | 341 | ||||||
b Preliminary estimate of loan interest accretion |
496 | 661 | ||||||
c Preliminary estimate of time deposits fair value
|
| 302 | ||||||
d Income tax expense of pro-forma adjustments |
659 | 851 |
a | The preliminary estimated core deposit intangible (CDI) is expected to approximate $3,411 and will be amortized over a ten year period on a straight-line basis which is expected to produce approximately $341 of amortization expense during the first year of combined operations and approximately $256 during the first nine months following the first year of combined operations. |
b | Represents preliminary estimate of interest income accretion related to the estimate of the fair value adjustment of the loans acquired pursuant to the merger. The amount will be accreted as an increase to interest income on a pro rata basis based on the maturities of the underlying loans, which is expected to approximate 36 months. The first year of accretion is preliminarily estimated to approximate $661 and the accretion over the nine month period following the first year of combined operations is estimated to approximate $496. |
c |
The time deposits acquired from MidSouth will be adjusted to fair value at the acquisition date. The preliminary estimate of the fair value adjustment at acquisition date is expected to approximate $302. This amount will be |
21
amortized as a decrease to interest expense on a pro rata basis based on the maturities of the underlying time deposits, which is estimated to be approximately ten months. The first year of amortization is preliminarily estimated to approximate the full amount of the adjustment of $302 so that the amortization over the nine month period following the first year of combined operations is estimated to be $0. |
d | Adjustment to reflect the income tax expense of the Pro Forma Combined entity using 38.29% as the incremental effective tax rate. Income tax expense reported for MidSouth was zero for all periods presented in the Unaudited Pro Forma Condensed Combined Financial Statements as a result of the full valuation allowance related to net deferred tax assets. Therefore, the Pro Forma Adjustment for income tax expense considers the pretax net income of MidSouth and all other income statement Pro Forma Adjustments for the respective periods. |
Based on managements preliminary estimates of the fair value of the fixed assets owned by MidSouth, the accretion of the fair value adjustment of these assets reflected in the Pro Forma Combined Consolidated Balance Sheet is not considered significant for the periods presented and is not included in Pro Forma Combined Consolidated Statement of Income.
Note 4 Earnings per Common Share
Unaudited pro forma earnings per common share for the nine months ended September 30, 2013 and for the year ended December 31, 2012 have been calculated using FFNs historic weighted average common shares outstanding plus the common shares assumed to be issued to MidSouth shareholders in the merger.
Under the terms of the Merger Agreement, MidSouth shareholders will be entitled to receive 0.425926 shares of FFN common stock for each common share of MidSouth Bank and 0.851852 shares of FFN common stock for each share of MidSouth Bank preferred stock. Each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50. Cash will be paid only to the extent of fractional shares resulting from the exchange rate provided in the merger agreement and any MidSouth shareholders that properly dissent from the merger. No significant cash will be paid to MidSouth shareholders as a result of the merger.
Each option to purchase a share of MidSouth common stock will be converted into an option to purchase a share of FFN common stock multiplied by the exchange ratio of one share of MidSouth common stock equating to 0.425926 shares of FFN common stock (the Exchange Ratio) and the exercise price will become the exercise price of such option divided by the Exchange Ratio.
The following table sets forth the calculation of basic and diluted unaudited pro forma earnings per common share for the nine months ended September 30, 2013 and the year ended December 31, 2012.
Nine months
ending Sept 30, 2013 |
Year ended
Dec 31 2012 |
|||||||||||||||
Basic | Diluted | Basic | Diluted | |||||||||||||
Pro forma net income available to common shareholders |
$ | 4,046 | $ | 4,046 | $ | 5,054 | $ | 5,054 | ||||||||
Weighted average common shares outstanding: |
||||||||||||||||
FFN |
3,656 | 3,750 | 3,561 | 3,624 | ||||||||||||
Common shares issued to MidSouth shareholders |
2,764 | 2,764 | 2,764 | 2,764 | ||||||||||||
Dilutive effect of MidSouth stock option conversion (1) |
| 46 | | 39 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Pro forma |
6,420 | 6,560 | 6,325 | 6,427 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Pro forma net income per common share |
$ | 0.63 | $ | 0.62 | $ | 0.80 | $ | 0.77 | ||||||||
|
|
|
|
|
|
|
|
(1) | MidSouth employee stock options convert to FFN stock options upon the closing of the merger. |
22
Note 5 Book Value Per Share
The following table provides for MidSouth shareholders a comparison of the book value per share, pro forma tangible book value per share and the consideration received based on the FFN stock price on September 30, 2013:
(In thousands, except per share values) |
MidSouth
Common Shares |
MidSouth
Preferred Shares |
Total | |||||||||
MidSouth Book Value Per Share : |
||||||||||||
Shares outstanding - September 30, 2013 |
3,872 | 1,260 | 5,132 | |||||||||
Common shares to be issued upon conversion of preferred shares |
| 1,260 | 1,260 | |||||||||
|
|
|
|
|
|
|||||||
Diluted ownership |
3,872 | 2,520 | 6,392 | |||||||||
|
|
|
|
|
|
|||||||
Diluted ownership percentage |
60.58 | % | 39.42 | % | 100.00 | % | ||||||
|
|
|
|
|
|
|||||||
Allocation of MidSouth book value at September 30, 2013 |
$ | 16,958 | $ | 11,035 | $ | 27,993 | ||||||
|
|
|||||||||||
Divided by shares outstanding |
3,872 | 1,260 | ||||||||||
|
|
|
|
|||||||||
Diluted book value per share |
$ | 4.38 | $ | 8.76 | ||||||||
|
|
|
|
|||||||||
Tangible book value per common share for FFN as of September 30, 2013 |
$ | 11.56 | ||||||||||
|
|
|||||||||||
Pro Forma Tangible Book Value Per Share : |
||||||||||||
Total pro forma book value |
$ | 101,097 | ||||||||||
Less FFN preferred stock |
(10,000 | ) | ||||||||||
Pro forma adjustments for intangibles: |
||||||||||||
Goodwill |
(5,546 | ) | ||||||||||
Core deposit intangible |
(3,411 | ) | ||||||||||
|
|
|||||||||||
Total tangible pro forma book value |
$ | 82,140 | ||||||||||
|
|
|||||||||||
Pro forma shares outstanding |
7,433 | |||||||||||
|
|
|||||||||||
Pro forma book value per common share |
$ | 11.05 | ||||||||||
|
|
|||||||||||
Allocated pro forma tangible book value per share |
||||||||||||
(pro forma book value per common share multiplied by the exchange ratios of 0.425926 and 0.851852, respectively) |
$ | 4.70 | $ | 9.41 | ||||||||
|
|
|
|
|||||||||
Consideration Per Share Based on FFN Stock Price at September 30, 2013 |
$ | 5.75 | $ | 11.50 | $ | 13.50 | ||||||
|
|
|
|
|
|
Book value per share has not been computed on a fully diluted basis assuming the exercise of all options.
23
Note 6 Preliminary Unaudited Pro Forma Regulatory Capital Ratios
The unaudited pro forma regulatory capital ratios shown below are not necessarily indicative of what the financial capital ratios actually would have been had the merger been completed at the date indicated. Such information includes adjustments which are preliminary and may be revised. Such revisions may result in material changes. The capital ratios shown herein are estimates and are not necessarily indicative of what the past capital ratios of the combined companies would have been, nor necessarily indicative of the capital ratios of the post-merger periods.
The following information reflects the unaudited adjusted pro forma balances used for calculating pro forma regulatory capital ratios as of September 30, 2013:
Average
Assets |
Capital | |||||||
Pro forma balances as of September 30, 2013 |
$ | 907,317 | $ | 101,097 | ||||
Pro forma adjustments: |
||||||||
Accumulated other comprehensive loss |
1,673 | |||||||
Goodwill |
(5,546 | ) | (5,546 | ) | ||||
Core deposit intangible |
(3,411 | ) | (3,411 | ) | ||||
Disallowed deferred tax asset |
(4,400 | ) | (4,400 | ) | ||||
|
|
|
|
|||||
Total pro forma adjustments |
(13,357 | ) | (11,684 | ) | ||||
|
|
|
|
|||||
Total adjusted pro forma average assets |
$ | 893,960 | ||||||
|
|
|||||||
Adjusted pro forma tier 1 capital |
89,413 | |||||||
Pro forma tier 2 capital allowed portion of allowance for loan and lease losses |
4,432 | |||||||
|
|
|||||||
Total adjusted pro forma risk-based capital |
$ | 93,845 | ||||||
|
|
The following information reflects the estimated unaudited pro forma regulatory capital ratios as of September 30, 2013 and compares those ratios with the regulatory capital ratios of FFN and MidSouth that were reported as of September 30, 2013:
Pro forma | FFN | MidSouth | ||||||||||
Tier 1 Leverage Capital Ratio : |
||||||||||||
Adjusted pro forma tier 1 capital |
$ | 89,413 | ||||||||||
Total adjusted pro forma average assets |
893,960 | |||||||||||
|
|
|||||||||||
Pro forma tier 1 leverage ratio |
10.0 | % | 10.3 | % | 11.1 | % | ||||||
|
|
|||||||||||
Tier 1 Risk-Based Capital Ratio : |
||||||||||||
Adjusted pro forma tier 1 capital |
$ | 89,413 | ||||||||||
Estimated pro forma risk-weighted assets |
630,021 | |||||||||||
|
|
|||||||||||
Pro forma tier 1 risk-based capital ratio |
14.2 | % | 14.9 | % | 13.8 | % | ||||||
|
|
|||||||||||
Total Risk-Based Capital Ratio : |
||||||||||||
Adjusted pro forma total risk-based capital |
$ | 93,845 | ||||||||||
Estimated pro forma risk-weighted assets |
630,021 | |||||||||||
|
|
|||||||||||
Pro forma total risk-based capital ratio |
14.9 | % | 15.9 | % | 15.0 | % | ||||||
|
|
24
UNAUDITED COMPARATIVE PER SHARE DATA
The following summary presents per share information for FFN and MidSouth on a historical, unaudited pro forma combined and pro forma equivalent per share financial data as of and for the year ended December 31, 2012 and as of and for the nine months ended September 30, 2013. The information presented below should be read together with: (i) FFNs audited consolidated financial statements and accompanying notes for year ended December 31, 2012, and unaudited consolidated financial statements and accompanying notes for the nine months ended September 30, 2013, both of which are included elsewhere in this joint proxy statement/prospectus; and (ii) MidSouths audited consolidated financial statements and accompanying notes for the year ended December 31, 2012, and MidSouths unaudited consolidated financial statements and accompanying notes for the nine months ended September 30, 2013, both of which are included elsewhere in this joint proxy statement/prospectus. See Index to Consolidated Financial Statements.
The unaudited pro forma adjustments are based upon available information and certain assumptions that FFN management believes are reasonable. The unaudited pro forma data, while helpful in illustrating the financial characteristics of the combined company under one set of assumptions, do not reflect the impact of factors that may result as a consequence of the merger or consider any potential impacts of current market conditions of the merger on revenues, expense efficiencies, asset dispositions, among other factors. As a result, unaudited pro forma data are presented for illustrative purposes only and do not represent an attempt to predict or suggest future results. Upon completion of the merger, the operating results of MidSouth will be reflected in the consolidated financial statements of FFN on a prospective basis.
Unaudited Pro Forma Comparative Per Share Data
For The Nine Months Ended September 30, 2013
As of and for the nine months ended September 30, 2013 | ||||||||||||||||
FFN
historical |
MidSouth
historical |
Pro Forma
combined |
Per
equivalent MidSouth share (1) |
|||||||||||||
Earnings per common share |
||||||||||||||||
Basic |
$ | 0.84 | $ | 0.38 | $ | 0.63 | $ | 0.31 | ||||||||
Diluted |
$ | 0.82 | $ | 0.23 | $ | 0.62 | $ | 0.31 | ||||||||
Cash dividends per common share |
$ | | $ | | $ | | $ | | ||||||||
Common equity per common share (2) |
$ | 11.59 | $ | 4.38 | $ | 12.26 | $ | 5.22 |
Unaudited Pro Forma Comparative Per Share Data
For The Year Ended December 31, 2012
As of and for the year ended December 31, 2012 | ||||||||||||||||
FFN
historical |
MidSouth
historical |
Pro
Forma combined |
Per
equivalent MidSouth share (1) |
|||||||||||||
Earnings per common share |
||||||||||||||||
Basic |
$ | 1.03 | $ | 0.42 | $ | 0.80 | $ | 0.38 | ||||||||
Diluted |
$ | 1.02 | $ | 0.24 | $ | 0.77 | $ | 0.37 | ||||||||
Cash dividends per common share |
$ | | $ | | $ | | $ | | ||||||||
Common equity per common share (3) |
$ | 11.42 | $ | 4.49 | NM | NM |
(1) | Equivalent pro forma per share data represent the pro forma per share amounts attributed to one share of MidSouth common stock that has been exchanged for stock consideration. Equivalent pro forma per share amounts are calculated by multiplying the pro forma combined amounts by the exchange ratio of 0.425926. |
(2) |
MidSouths historical common equity per common share is calculated assuming all preferred shares have been converted to common stock at the conversion ratio of two shares of common stock for every one share of preferred stock. The pro forma combined book value per share as of September 30, 2013 is calculated as the pro forma |
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combined shareholders equity at September 30, 2013 divided by the sum of the number of shares of FFN common stock outstanding at the period ended September 30, 2013 and the number of shares of FFN common stock to be issued in conjunction with the acquisition of MidSouth. |
(3) | Book value as of December 31, 2012 is not meaningful (NM) as acquisition accounting adjustments were calculated as of September 30, 2013. |
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If the merger is consummated and you are a MidSouth shareholder, you will receive shares of FFN common stock in exchange for your shares of MidSouth common stock, preferred stock and warrants. An investment in FFN common stock is subject to a number of risks and uncertainties. (Unless otherwise stated, references to MidSouth stock include MidSouths common stock, both series of its preferred stock, stock options, and stock purchase warrants, although only its preferred and common shares have voting rights.) Risks and uncertainties relating to general economic conditions are not summarized below.
However, FFN and MidSouth believe that there are a number of other risks and uncertainties relating to FFN that you should consider in deciding how to vote on the merger agreement and the FFN merger proposal in addition to the risks and uncertainties associated with financial institutions generally. Many of these risks and uncertainties could affect FFNs future financial results and may cause FFNs future earnings and financial condition to be less favorable than FFNs expectations. There are also a number of risks related to the merger that shareholders of both FFN and MidSouth should consider in deciding how to vote on the merger agreement and the FFN merger proposal. This section summarizes those risks. As noted below, these may not be all of the risks associated with owning FFN common stock (or the securities of any other bank holding company or financial institution), but only those that FFN and MidSouth believe are the most pertinent to this investment decision.
Risks Related to the Merger
The Value of FFN Shares Received Will Fluctuate; Shareholders of MidSouth May Receive More or Less Value Depending on Fluctuations in the Price of FFN Common Stock
The number of shares of FFN common stock issued to MidSouth shareholders in exchange for each share of MidSouth common stock, preferred stock or warrant is fixed. The market values of FFN common stock and MidSouth stock when the merger is completed may vary from their market values at the date of this document and at the date of the shareholders meetings of FFN and MidSouth. Shares of FFN common stock are not traded on an exchange, and therefore as of the date of this joint proxy statement/prospectus, there is no public market for such shares. There is no assurance that shares of FFN can be sold at a price equal to or greater than the Exchange Ratio based on a value of $13.50 per share of FFN common stock following completion of the merger. See Risks Related to FFN and FFN Common Stock - Lack of Trading Market. Because the Exchange Ratio will not be adjusted to reflect any changes in the market value of FFN common stock, the market value of FFN common stock issued in the merger may be higher or lower than the value of such shares on earlier dates. If the value of FFN common stock declines prior to completion of the merger, the value of the merger consideration to be received by MidSouths shareholders will decrease.
These variations may be the result of various factors, many of which are beyond the control of MidSouth and FFN, including:
| changes in the business, operations or prospects of FFN, MidSouth or the combined company; |
| governmental and/or litigation developments and/or regulatory considerations; |
| market assessments as to whether and when the merger will be consummated and the anticipated benefits of the merger; |
| governmental action affecting the banking and financial industry generally; |
| market assessments of the potential integration or other costs; |
| lack of a trading market for FFN common stock; and |
| general market and economic conditions. |
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The merger may not be completed until a significant period of time has passed after the FFN and MidSouth shareholder meetings. At the time of their respective shareholder meetings, FFN and MidSouth shareholders will not know the exact value of the FFN common stock that will be issued in connection with the merger.
The value of FFN common stock and MidSouth stock at the effective time of the merger may vary from their prices on the date of this joint proxy statement/prospectus. Since there is no public market for either FFN common stock or MidSouth stock, the future market prices of FFN common stock and MidSouth stock cannot be guaranteed or predicted.
FFN May Not Be Able to Successfully Integrate MidSouth or to Realize the Anticipated Benefits of the Merger
The merger involves the combination of two banks that previously have operated independently. A successful combination of the operations of the two entities will depend substantially on FFNs ability to consolidate operations, systems and procedures and to eliminate redundancies and costs. It is also the plan that FFN intends to utilize most if not all of MidSouths employees, a plan that may or may not be completely feasible as the growth of the banks and FFN continues and the demands of the marketplace dictate. FFN may not be able to combine the operations of MidSouth and FSB without encountering difficulties, such as:
| the loss of key employees; |
| disruption of operations and business; |
| inability to maintain and increase competitive presence; |
| deposit attrition, customer loss and revenue loss; |
| possible inconsistencies and disruptions during the period need to integrate standards, control procedures and policies; |
| unexpected problems with costs, operations, personnel, technology and credit; and/or |
| problems with the assimilation of new operations, sites or personnel, which could divert resources from regular banking operations. |
Additionally, general market and economic conditions or governmental actions affecting the financial industry generally may inhibit the successful integration of MidSouth and FSB.
Further, FFN and MidSouth entered into the merger agreement with the expectation that the merger will result in various benefits including, among other things, benefits relating to enhanced revenues, a strengthened market position for the combined company, cross-selling opportunities, technology, cost savings and operating efficiencies. Achieving the anticipated benefits of the merger is subject to a number of uncertainties, including whether FFN integrates MidSouth in an efficient and effective manner, and general competitive factors in the marketplace. Failure to achieve these anticipated benefits could result in increased costs, decreases in the amount of expected revenues and diversion of managements time and energy and could materially impact FFNs business, financial condition and operating results. Finally, any cost savings that are realized may be offset by losses in revenues or other charges to earnings.
MidSouth Shareholders Will Have a Reduced Ownership and Voting Interest After the Merger and Will Have Less Ability to Exercise Influence Over Management
After the mergers completion, MidSouth shareholders will own a significantly smaller percentage of FFN than they currently own of MidSouth. Following completion of the merger, MidSouth shareholders will own approximately 36% of the combined company on a fully-diluted basis. Additionally, former MidSouth directors initially will hold only three out of ten seats on FFNs board. Consequently, MidSouth shareholders likely will be able to exercise less influence over the management and policies of FFN than they currently exercise over the management and policies of MidSouth.
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The Combined Company Will Incur Significant Transaction and Merger-Related Costs in Connection With the Merger
FFN and MidSouth expect to incur costs associated with combining the operations of the two companies. FFN and MidSouth have just recently begun collecting information in order to formulate detailed integration plans to deliver planned synergies. Additional unanticipated costs may be incurred in the integration of the businesses of FFN and MidSouth. Although FFN and MidSouth expect that the elimination of duplicative costs, as well as the realization of other efficiencies related to the integration of the businesses may offset incremental transaction and merger-related costs over time, this net benefit may not be achieved in the near term, or at all. One important set of costs relates to the anticipated conversion of MidSouths data processing to the wholly-owned data processing system used by FSB. We believe that this conversion will result in significant cost savings to the combined banks but that expectation may not be realized, may be costly to realize, or could be realized much later than currently anticipated.
Whether or not the merger is consummated, FFN and MidSouth will incur substantial expenses, such as legal, accounting and financial advisory fees, in pursuing the merger. Completion of the merger is conditioned upon the receipt of all material governmental authorizations, consents, orders and approvals, including approval by federal and state banking regulators. FFN and MidSouth received approval from the FRB on January 28, 2014 and from the TDFI on , 2014. See THE MERGER AGREEMENT - Conditions to the Completion of the Merger for a discussion of the conditions to the completion of the merger and FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGER - Regulatory Approval for a description of the regulatory approvals necessary in connection with the merger.
Directors and Officers of MidSouth have Potential Conflicts of Interest in the Merger
You should be aware that some directors and officers of MidSouth have interests in the merger that are different from or in addition to, the interests of MidSouth shareholders generally.
For example, certain of the executive officers of MidSouth have been offered employment or other related agreements by FSB that provide the executive officer with payment for services provided to FSB as well as, in some instances, payments upon a change in control of FFN or FSB. These agreements may create potential conflicts of interest by creating vested interests in those persons in the completion of the merger. In addition, FFN agreed in the merger agreement to indemnify and provide liability insurance to MidSouth officers and directors. These and certain other additional interests of MidSouths directors and officers may cause some of these persons to view the proposed transaction differently than you view it, although MidSouths board and officers currently have comparable indemnification rights and director and officer (and errors and omission) insurance coverages. For more information about these interests, please see FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGER Interests of Certain MidSouth Executive Officers and Directors in the Merger.
The Opinion Obtained by MidSouth from its Financial Advisor Will Not Reflect Changes in Circumstances Prior to the Merger
On November 20, 2013, MidSouths financial advisor, Sterne, Agee & Leach Inc. (Sterne Agee or the MidSouth Financial Advisor) delivered to the MidSouth board its oral opinion (which was confirmed in writing by letter dated November 21, 2013) as to the fairness from a financial point of view to the shareholders of MidSouth, as of that date, of the exchange ratio governing the aggregate merger consideration to be received by them under the merger agreement. A copy of this opinion is attached hereto as Appendix C . The opinion does not reflect changes that may occur or may have occurred after the date of such opinion, to the operations and prospects of FFN or MidSouth, general market and economic conditions and other factors. As a result of the foregoing, MidSouth shareholders should be aware that the opinion of Sterne Agee attached hereto does not address the fairness of the aggregate merger consideration at any time other than as of November 21, 2013.
Failure to Complete the Merger Could Cause FFNs or MidSouths Stock Price to Decline
If the merger is not completed for any reason, FFNs or MidSouths stock price may decline because costs related to the merger, such as legal, accounting and financial advisory fees, must be paid even if the merger is not completed. In addition, if the merger is not completed, FFNs or MidSouths stock price may decline to the extent that the current market price reflects a market assumption that the merger will be completed or due to questions about why (or whose fault it was that) the merger was not completed.
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Risks Related to FFN and FFN Common Stock
Shares of FFN Common Stock Are Not Insured
Shares of FFN common stock are not deposits and are not insured by the FDIC or any other entity.
There Is No Trading Market for Shares of FFN Common Stock
As of the date hereof, there is no public market for the shares offered hereby, and there can be no assurance that a market will develop at the conclusion of this joint proxy statement/prospectus or any time thereafter. In 2013, FFN sold a total of 1,153,847 shares of the common stock at $13.00 per share in a private placement. During 2012 and 2013, 57,433 of the 131,250 outstanding warrants to purchase shares issued in 2007 were exercised at $12.00 per share on or before their expiration date. The remaining 73,817 warrants expired unexercised. There can be no assurance that the shares can be sold at a price equal to or greater than the Exchange Ratio based on a value of $13.50 per share following completion of the merger. Holders should, therefore, be prepared to hold the shares for an indefinite period of time.
There Is No Certainty of Return on Investment
No assurance can be given that a holder of the shares will realize a substantial return on his or her investment, or any return at all. Further, as a result of the uncertainty and risks associated with FFNs operations as described in this RISK FACTORS section, it is possible that an investor will lose his or her entire investment.
FSB Is Less than Ten Years Old and Is Subject to Certain Regulatory Requirements and Financial Pressures As a Result
FSB is a Tennessee-chartered banking corporation, and it is subject to certain regulatory requirements and financial pressures as an institution that has been in existence for less than ten years. Although certain directors and officers of FSB have previously engaged in the banking industry, no assurance can be given that FSBs and FFNs operations will continue to be successful. The failure of FSB to employ competent secondary management level personnel and meet projected performance levels would have an adverse impact on an investment in FSB and FFN. There can be no assurance that FSB will be able to obtain the necessary management and meet projected performance levels or that unanticipated events will not render such performance levels unachievable.
FFN and/or FSB May Require Additional Capital
The Board of Directors believes that the current level of capital will be adequate at the present time to sustain the operations and projected growth of FFN and FSB. If FFN or FSB fails to meet sufficient financial performance (including as a result of significant provision expense as a result of deterioration in asset quality) or if the assets of FSB grow more quickly than projected, management may determine or government regulators may require FFN or FSB to raise additional capital. In the event FFN or FSB falls below certain regulatory capital adequacy standards, they may become subject to regulatory intervention and restrictions. FFN can give no assurance that such additional capital is available at prices that will be acceptable to FFN, if at all. In the event of the issuance of additional shares, then current shareholders will not have the first right to subscribe to new shares (preemptive rights), so their ownership percentage may be diluted in the future. See DESCRIPTION OF FFN CAPITAL STOCK - Common Stock.
FFN and FSB Are Subject to Extensive Regulation
FFN and FSB are subject to extensive governmental regulation and control. Compliance with state and federal banking laws has a material effect on the business and operations of FFN and FSB. The operation of FFN and FSB will at all times be subject to state and federal banking laws, regulations, and procedures. The laws and regulations applicable to the banking industry could change at any time and are subject to interpretation, and management cannot predict the effects of these changes on FFNs business and profitability. Because government regulation greatly affects the business and financial results of all commercial banks and bank holding companies, the
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cost of compliance could adversely affect the ability of FFN to operate profitably. Non-banking financial institutions, such as securities brokerage firms, insurance companies, and money market funds are now permitted to offer services which compete directly with services offered by banks. See SUPERVISION AND REGULATION.
FFN and FSB Are Dependent on Key Personnel
FFN and FSB are materially dependent on the performance of its executive management team, loan officers, and other support personnel. The loss of the services of any of these employees could have a material adverse effect on the business of FFN and FSB, results of operations, and financial condition. Many of these key officers have important customer relationships, which are instrumental to FSBs operations. Changes in key personnel and their responsibilities may be disruptive to FSBs business and could have a material adverse effect on FSBs business, financial condition, and results of operations. Management believes that future results also will depend in part upon attracting and retaining highly skilled and qualified management, especially in the new market areas into which FSB may enter, as well as sales and marketing personnel. Competition for such personnel is intense, and management cannot be sure that FSB will be successful in attracting or retaining such personnel. See MANAGEMENT.
FFN Is an Emerging Growth Company and It Cannot Be Certain if the Reduced Disclosure Requirements Applicable to Emerging Growth Companies Will Make FFNs Common Stock Less Attractive to Investors
After filing the registration statement, of which this joint proxy statement/prospectus is a part, FFN will be subject to periodic reporting requirements under the Exchange Act. FFN is an emerging growth company, as defined in the JOBS Act, however, and it may take advantage of certain exemptions from various reporting requirements that are applicable to public companies that are not emerging growth companies, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. In addition, even if FFN complies with the greater obligations of public companies that are not emerging growth companies immediately after this offering, FFN may avail itself of the reduced requirements applicable to emerging growth companies from time to time in the future, so long as it is an emerging growth company. FFN will remain an emerging growth company for up to five years, though FFN may cease to be an emerging growth company earlier under certain circumstances, including if, before the end of such five years, it is deemed to be a large accelerated filer under the rules of the SEC (which depends on, among other things, having a market value of common stock held by non-affiliates in excess of $700 million) or if FFNs total annual gross revenues equal or exceed $1 billion in a fiscal year. FFN cannot predict if investors will find its common stock less attractive because it will rely on these exemptions. If some investors find FFNs common stock less attractive as a result, there may be a less active trading market for FFNs common stock and FFNs stock price may be more volatile.
Competition For Deposits and Loans Is Expected To Be Intense, and No Assurance Can Be Given That FFN Will Be Successful in Its Efforts to Compete with Other Financial Institutions
The commercial banking industry in Williamson County, FFNs main banking market, consists of thirty-two (32) banks and two (2) savings and loan institutions, with 99 total offices as of June 30, 2013, which is the most recent date such information has been released by the FDIC. The FDIC annual Report on Deposits reported the total deposits of these financial institutions were $5.3 billion as of June 30, 2013. The commercial banking industry in Rutherford County, into which FFN will expand upon completion of the merger, and the main banking market of MidSouth, consists of 19 banks, with 78 total offices as of June 30, 2013. The FDIC annual Report on Deposits reported the total deposits of these financial institutions were $3.1 billion as of June 30, 2013. In addition, there are credit unions, finance companies, securities brokerage firms, and other types of businesses offering financial services. Offices affiliated with out-of-state financial institutions have entered Tennessee in recent years to offer all financial services, including lending and deposit gathering activities. Also, recent changes to laws on interstate banking and branching now permit banks and bank holding companies headquartered outside Tennessee to move into Williamson County and Rutherford County more easily. Technological advances and the growth of e-commerce have made it possible for non-financial institutions to offer products and services that traditionally have been offered by banking institutions. Competition for deposit and loan opportunities in FFNs market area is expected to be intense because of existing competitors and the geographic expansion into the market area by other institutions. See SUPERVISION AND REGULATION. No assurance can be given that FFN will be successful in its efforts to compete with such other institutions.
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There Can Be No Assurance that FSB Will Not Incur Excessive Loan Losses
An allowance for loan losses account is accumulated through monthly provisions against income. This account is a valuation allowance established for possible credit losses inherent in the loan portfolio. Banks are susceptible to risks associated with their loan portfolios. FSBs loan customers may include a disproportionate number of individuals and entities seeking to establish a new banking relationship because they are dissatisfied with the amount or terms of credit offered by their current banks, or they may have demonstrated less than satisfactory performance in previous banking relationships. If FSB lends to individuals who have demonstrated less than satisfactory performance in previous banking relationships, FSB could experience disproportionate loan losses which could have a significantly negative impact on FSBs earnings. Although management is aware of the potential risks associated with extending credit to customers with whom they have not had a prior lending relationship, there can be no assurance that FSB will not incur excessive loan losses. Bank regulators may disagree with FSBs characterization of the collectability of loans and may require FSB to downgrade credits and make additional provision expense that would negatively impact results of operations and capital levels.
FFN Cannot Ensure When Or If It Will Pay Dividends
The ability of FFN to pay dividends is highly dependent on FSBs ability to pay dividends and may be limited based upon restrictions of the Small Business Lending Fund. The likelihood of FFN declaring dividends to its shareholders is contingent on the anticipated growth and capital preservation strategy to maintain a strong capital level for both FSB and Corporation. As a result, FFN cannot project or guarantee when dividends will be declared in the future. See DESCRIPTION OF FFN CAPITAL STOCK - Preferred Stock. FFNs Board of Directors has also decided to not pay dividends at this time.
FSB Depends on Its Ability to Attract Deposits
The acquisition of local deposits and other retail sources of funds (Repurchase Accounts) is a primary objective of FSB. In addition to the traditional deposit accounts solicited in its community, FSB also solicits local deposits through the internet and will offer internet-only deposit accounts to supplement traditional depository accounts. FSB is a member of the Federal Home Loan Bank for use as a general funding source and may use brokered deposits to balance funding needs.
FFN and FSB Are Affected by Governmental Monetary Policies
Like all regulated financial institutions, FFN and FSB are affected by monetary policies implemented by the Federal Reserve and other federal instrumentalities. A primary instrument of monetary policy employed by the Federal Reserve is the restriction or expansion of the money supply through open market operations. This instrument of monetary policy frequently causes volatile fluctuations in interest rates, and it can have a direct, adverse effect on the operating results of financial institutions. Borrowings by the United States government to finance the government debt may also cause fluctuations in interest rates and have similar effects on the operating results of such institutions. See SUPERVISION AND REGULATION.
Changes in interest rates may reduce FSBs profitability
FSBs profitability is dependent to a large extent upon net interest income, which is the difference between its interest income on interest-earning assets and interest expense on interest-bearing liabilities. FSB will continue to be affected by changes in levels of interest rates and other economic factors beyond its control, particularly to the extent that such factors affect the overall volume of their lending and deposit activities. The matching of assets and liabilities may be analyzed by examining the extent to which such assets and liabilities are interest rate sensitive and by monitoring an institutions interest rate sensitivity gap. An asset or liability is said to be interest rate sensitive within a specific time period if it will mature or reprice within that time period. The interest rate sensitivity gap is defined as the difference between the amount of interest-earning assets maturing or repricing within a specific time period and the amount of interest-bearing liabilities maturing or repricing within that time period. A gap is considered positive when the amount of interest rate sensitive assets exceeds the amount of interest rate sensitive
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liabilities. A gap is considered negative when the amount of interest rate sensitive liabilities exceeds the amount of interest rate sensitive assets. During a period of rising interest rates, a negative gap would tend to adversely affect net interest income while a positive gap would tend to result in an increase in net interest income. During a period of falling interest rates, a negative gap would tend to result in an increase in net interest income while a positive gap would tend to adversely affect net interest income.
The impact of the changing regulatory capital requirements and recently adopted capital rules is uncertain
Under recently adopted rules by the FRB and FDIC, the leverage and risk-based capital ratios of bank holding companies may not be lower than the leverage and risk-based capital ratios for insured depository institutions. These rules will become effective as to FFN and FSB on January 1, 2015 and include new minimum risk-based capital and leverage ratios. Moreover, these rules refine the definition of what constitutes capital for purposes of calculating those ratios. The new minimum capital level requirements applicable to bank holding companies and banks subject to the rules are: (i) a new common equity Tier 1 capital ratio of 4.5%; (ii) a Tier 1 risk-based capital ratio of 6% (increased from 4%); (iii) a total risk-based capital ratio of 8% (unchanged from current rules); and (iv) a Tier 1 leverage ratio of 4% for all institutions. The rules also establish a capital conservation buffer of 2.5% (to be phased in over three years) above the new regulatory minimum capital ratios, and result in the following minimum ratios once the capital conservation buffer is fully phased in: (i) a common equity Tier 1 risk-based capital ratio of 7.0%, (ii) a Tier 1 risk-based capital ratio of 8.5%, and (iii) a total risk-based capital ratio of 10.5%. The capital conservation buffer requirement is to be phased in beginning in January 2016 at 0.625% of risk-weighted assets and would increase each year until fully implemented in January 2019. An institution will be subject to limitations on paying dividends, engaging in share repurchases and paying discretionary bonuses if its capital levels fall below the buffer amounts. These limitations establish a maximum percentage of eligible retained income that could be utilized for such actions.
The application of these more stringent capital requirements to FFN and FSB could, among other things, result in lower returns on invested capital, require the raising of additional capital, and result in regulatory actions if FFN or FSB were to be unable to comply with such requirements. Furthermore, the imposition of liquidity requirements in connection with the implementation of the final rules could result in FFN or FSB having to lengthen the term of their funding, restructure their business models and/or increase their holdings of liquid assets. Implementation of changes to asset risk weightings for risk-based capital calculations, items included or deducted in calculating regulatory capital and/or additional capital conservation buffers could result in management modifying its business strategy and could limit FFNs and FSBs ability to make distributions, including paying dividends or buying back shares. See SUPERVISION AND REGULATION.
FSB Is Subject to General Banking Risks
Several risks are inherent in the business of banking. Factors outside FSBs control, such as instability in interest rates, a depressed economy, government regulation, and federal monetary policy, for example, could adversely impact the banking industry. Banks are also exposed to risk of loss as a result of fraud, embezzlement, insider abuse, and mismanagement. Extensions of credit create a risk that loans cannot or will not be repaid. Earnings are affected by the ability of FSB to properly originate, underwrite and service loans. FSB could sustain losses if it incorrectly assesses the creditworthiness of its borrowers or fails to detect or respond to deterioration in asset quality in a timely manner. Rapid changes in loan and deposit terms result in a risk of loss from changes in interest rates. In managing its loans and investments (assets) and its borrowings and deposits (liabilities), FSB will run the risk of having insufficient liquid assets to meet withdrawal requests.
FFN Is Subject to Risks of Its Other Lines of Business
Beyond general banking risk, FFN will take limited risk in mortgage banking, consulting, or other financial services being offered.
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FSB May Be Required To Rely on Secondary Sources of Liquidity To Meet Withdrawal Needs or Fund Operations, and There Can Be No Assurance That These Sources Will Be Sufficient To Meet Future Liquidity Demands
The primary source of FSBs funds is customer deposits and loan repayments. While scheduled loan repayments are a relatively stable source of funds, they are subject to the ability of borrowers to repay the loans. The ability of borrowers to repay loans can be adversely affected by a number of factors, including changes in general economic conditions, adverse trends or events affecting business industry groups, reductions in real estate values or markets, business closings or lay-offs, inclement weather, natural disasters and international instability. Additionally, deposit levels may be affected by a number of factors, including rates paid by competitors, general interest rate levels, returns available to customers on alternative investments and general economic conditions. Accordingly, FSB may be required from time to time to rely on secondary sources of liquidity to meet withdrawal demands or otherwise fund operations. These sources include brokered certificates of deposits, borrowings from the Federal Reserve, Federal Home Loan Bank advances, and federal funds lines of credit from correspondent banks. While management believes that these sources are currently adequate, there can be no assurance that they will be sufficient to meet future liquidity demands. FSB may be required to slow or discontinue loan growth, capital expenditures or other investments or liquidate assets should these sources not be adequate.
Economic Challenges, Especially Those Affecting the Local Economy Where FFN Operates, Could Affect the Financial Condition and Results of Operations of FFN
If the communities in which FFN operates do not grow or if prevailing economic conditions locally or nationally are unfavorable, the business of FFN may not succeed. Adverse economic conditions to the extent they develop in the specific market area of FFN, which currently is limited to the Williamson County and nearby areas, and which will be expanded to include Rutherford County upon completion of the merger, could reduce FFNs growth rate, affect the ability of its customers to repay their loans, and generally affect the financial condition and results of operations of FFN. Moreover, management cannot give any assurance that FFN will benefit from any market growth or favorable economic conditions in its primary market area if they do occur. Continued adverse market or economic conditions may increase the risk that FSBs borrowers will be unable to timely make their loan payments. In addition, the market value of the real estate securing loans as collateral could be adversely affected by unfavorable changes in market and economic conditions.
FSBs loan portfolio is real-estate focused. While this is the expertise of lending staff and management, risks associated with this type of lending are greater in the current economic environment.
As of September 30, 2013, approximately 87.2% of FSBs total loans were real-estate secured. One-four family residential properties accounted for 35.3% of FSBs portfolio, owner-occupied commercial real estate was 6.0% and other commercial real estate was 18.4% of the total loan portfolio. Other real estate including multi-family and farmland accounted for less than 1% of outstanding loans. Total construction lending accounted for 26.3% of total loans with custom-built residential homes representing 5.6%, other residential construction lending totaling 19.0% and commercial construction lending totaling 1.7%. A sustained period of increased payment delinquencies, foreclosures, or losses caused by continuing adverse market or economic conditions in the state of Tennessee, or more specifically FSBs market area, could adversely affect the value of the assets, revenues, results of operations, and financial condition of FFN.
The Financial Condition and Results of Operations Could be Affected if Long-Term Business Strategies are not Effectively Executed
Although FSBs primary focus in the near term will be organically growing the balance sheet, management intends, over the longer term, to continue pursuing a growth strategy for FSBs business through de novo branching. FSBs prospects must be considered in light of the risks, expenses, and difficulties occasionally encountered by financial services companies in growth stages, which may include the following:
Operating Results : There is no assurance that existing offices or future offices will maintain or achieve deposit levels, loan balances, or other operating results necessary to avoid losses or produce profits. FSBs growth strategy necessarily entails growth in overhead expenses as it routinely adds new offices and staff. Historical results may not be indicative of future results or results that may be achieved as FSB continues to increase the number and concentration of FSBs branch offices.
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Development of Offices : There are considerable costs involved in opening branches, and new branches generally do not generate sufficient revenues to offset their costs until they have been in operation for at least a year or more. Accordingly, de novo branches may be expected to negatively impact earnings during this period of time until the branches reach certain economies of scale.
Regulatory and Economic Factors : Growth and expansion plans may be adversely affected by a number of regulatory and economic developments or other events. Failure to obtain required regulatory approvals, changes in laws and regulations, or other regulatory developments and changes in prevailing economic conditions or other unanticipated events may prevent or adversely affect continued growth and expansion. Failure to successfully address the issues identified above could have a material adverse effect on FSBs business, future prospects, financial condition, or results of operations, and could adversely affect FSBs ability to successfully implement its longer term business strategy.
A failure in or breach of FFNs operational or security systems or infrastructure, or those of FFNs third party vendors and other service providers or other third parties, including as a result of cyber attacks, could disrupt FFNs businesses, result in the disclosure or misuse of confidential or proprietary information, damage its reputation, increase its costs, and cause losses
FFN relies heavily on communications and information systems to conduct its business. Information security risks for financial institutions such as FFNs have generally increased in recent years in part because of the proliferation of new technologies, the use of the internet and telecommunications technologies to conduct financial transactions, and the increased sophistication and activities of organized crime, hackers, and terrorists, activists, and other external parties. As customer, public, and regulatory expectations regarding operational and information security have increased, FFNs operating systems and infrastructure must continue to be safeguarded and monitored for potential failures, disruptions, and breakdowns. FFNs business, financial, accounting, and data processing systems, or other operating systems and facilities, may stop operating properly or become disabled or damaged as a result of a number of factors, including events that are wholly or partially beyond FFNs control. For example, there could be electrical or telecommunication outages; natural disasters such as earthquakes, tornadoes, and hurricanes; disease pandemics; events arising from local or larger scale political or social matters, including terrorist acts; and as described below, cyber attacks.
As noted above, FFNs business relies on its digital technologies, computer and email systems, software and networks to conduct its operations. Although FFN has information security procedures and controls in place, FFNs technologies, systems and networks and its customers devices may become the target of cyber attacks or information security breaches that could result in the unauthorized release, gathering, monitoring, misuse, loss, or destruction of FFNs or its customers or other third parties confidential information. Third parties with whom FFN does business or that facilitate FFNs business activities, including financial intermediaries, or vendors that provide service or security solutions for FFNs operations, and other unaffiliated third parties, could also be sources of operational and information security risk to FFN, including from breakdowns or failures of their own systems or capacity constraints.
While FFN has disaster recovery and other policies and procedures designed to prevent or limit the effect of the failure, interruption or security breach of its information systems, there can be no assurance that any such failures, interruptions or security breaches will not occur or, if they do occur, that they will be adequately addressed. FFNs risk and exposure to these matters remain heightened because of the evolving nature of these threats. As a result, cyber security and the continued development and enhancement of FFNs controls, processes, and practices designed to protect its systems, computers, software, data, and networks from attack, damage or unauthorized access remain a focus for FFN. As threats continue to evolve, FFN may be required to expend additional resources to continue to modify or enhance its protective measures or to investigate and remediate information security vulnerabilities. Disruptions or failures in the physical infrastructure or operating systems that support FFNs businesses and clients, or cyber attacks or security breaches of the networks, systems or devices that FFNs clients use to access FFNs products and services could result in client attrition, regulatory fines, penalties or intervention, reputation damage, reimbursement or other compensation costs, and/or additional compliance costs, any of which could have a material effect on FFNs results of operations or financial condition.
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Other Risks May Arise
Other risks which have not been contemplated by this joint proxy statement/prospectus may exist or might arise in connection with investment in FFNs stock, but FFNs management has not identified any such other material risk factors or material areas of risk at this time.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this joint proxy statement/prospectus that are not statements of historical fact constitute forward-looking statements within the meaning of Section 27A of the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended (the Exchange Act). Forward-looking statements may relate to, among other matters, the financial condition, results of operations, plans, objectives, future performance, and business of each of FFN and MidSouth, as well as certain information relating to the merger. Forward-looking statements are based on many assumptions and estimates and are not guarantees of future performance. The actual results may differ materially from those anticipated in any forward-looking statements, as they will depend on many factors about which FFN and MidSouth are unsure, including many factors that are beyond their control. The words may, would, could, should, will, expect, anticipate, predict, project, potential, continue, contemplate, seek, assume, believe, intend, plan, forecast, goal, and estimate, as well as similar expressions, are meant to identify such forward-looking statements. Potential risks and uncertainties that could cause actual results to differ materially from those anticipated in our forward-looking statements include, but are not limited to, those described under the Risk Factors section and the following:
| expected revenue synergies and cost savings from the combination may not be fully realized; |
| revenues following the combination may be lower than expected; |
| ability to obtain governmental approvals of the combination on the proposed terms and schedule; |
| failure of FFNs and MidSouths shareholders to approve the FFN merger proposal or the FFN merger proposal, as applicable; |
| credit losses as a result of, among other potential factors, declining real estate values, increasing interest rates, increasing unemployment, or changes in payment behavior or other factors; |
| restrictions or conditions imposed by FFNs regulators on its operations; |
| the adequacy of the level of FFNs allowance for loan losses and the amount of loan loss provisions required in future periods; |
| examinations by FFNs regulatory authorities, including the possibility that the regulatory authorities may, among other things, require FFN to increase its allowance for loan losses or write down assets; |
| increases in competitive pressure in the banking and financial services industries; |
| changes in the interest rate environment which could reduce anticipated or actual margins; |
| changes in political conditions or the legislative or regulatory environment, including governmental initiatives affecting the financial services industry; |
| general economic conditions resulting in, among other things, a deterioration in credit quality; |
| changes occurring in business conditions and inflation; |
| changes in funding or increased regulatory requirements with regard to funding; |
| increased cybersecurity risk, including potential business disruptions or financial losses; |
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| changes in technology; |
| changes in deposit flows; |
| changes in monetary and tax policies; |
| changes in accounting policies and practices; |
| the rate of delinquencies and amounts of loans charged off; |
| the rate of loan growth in recent years and the lack of seasoning of a portion of FFNs loan portfolio; |
| FFNs ability to maintain appropriate levels of capital; |
| FFNs ability to attract and retain key personnel; |
| FFNs ability to retain its existing clients, including its deposit relationships; |
| adverse changes in asset quality and resulting credit risk-related losses and expenses; and |
| loss of consumer confidence and economic disruptions resulting from terrorist activities. |
Because of these and other risks and uncertainties, FFNs or MidSouths actual future results may be materially different from the results indicated by any forward-looking statements. In addition, FFNs and MidSouths past results of operations do not necessarily indicate their future results. Therefore, both companies caution you not to place undue reliance on their forward-looking information and statements. Both companies undertake no obligation to update or otherwise revise any forward-looking statements, whether as a result of new information, future events, or otherwise.
All forward-looking statements in this joint proxy statement/prospectus are based on information available to FFN and MidSouth as of the date of this joint proxy statement/prospectus. Although both companies believe that the expectations reflected in our forward-looking statements are reasonable, neither company can guarantee you that these expectations will be achieved. Both companies undertake no obligation to publicly update or otherwise revise any forward-looking statements, whether as a result of new information, future events, or otherwise.
FFN. With respect to FFN shareholders, this document constitutes a proxy statement of FFN in connection with its solicitation of proxies from its shareholders for the vote on the following five proposals: (i) the FFN merger proposal; (ii) the election of seven directors to serve until the 2015 annual meeting of shareholders; (iii) the ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014; (iv) the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000; and (v) the authorization to adjourn FFNs annual shareholders meeting. This proxy statement is being mailed by FFN to FFN shareholders of record on or about , 2014, together with the notice of the annual shareholders meeting and a proxy solicited by FFNs board of directors for use at the annual shareholders meeting and at any adjournments or postponements of the annual shareholders meeting.
MidSouth. With respect to MidSouth shareholders, this document constitutes a proxy statement of MidSouth in connection with its solicitation of proxies from its shareholders for the vote on the merger agreement and on the authorization to adjourn the special shareholders meeting, as well as a prospectus of FFN in connection with its issuance of shares of FFN common stock as merger consideration. The joint proxy statement/prospectus is being mailed by MidSouth and FFN to MidSouth shareholders of record on or about , 2014, together with the notice of the special shareholders meeting and a proxy solicited by MidSouths board of directors for use at the special shareholders meeting and at any adjournments or postponements of the special shareholders meeting.
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M eeting Dates, Times, and Places and Record Dates
FFN. The FFN annual shareholders meeting will be held at 722 Columbia Avenue, Franklin, Tennessee, at .m., local time, on , 2014. Only holders of FFN common stock of record at the close of business on , 2014 will be entitled to receive notice of and to vote at the annual shareholders meeting. As of the record date, there were shares of FFN common stock outstanding and entitled to vote, with each such share entitled to one vote.
MidSouth. The MidSouth special shareholders meeting will be held at One East College Street, Murfreesboro, Tennessee, at .m., local time, on , 2014. Only holders of MidSouth common stock and preferred stock of record at the close of business on , 2014 will be entitled to receive notice of and to vote at the special shareholders meeting. As of the record date, there were shares of MidSouth common and preferred stock outstanding and entitled to vote, with each such share entitled to one vote.
FFN. At the FFN annual shareholders meeting, FFN shareholders will be asked to consider five scheduled items of business and any other business that may properly come before the FFN annual meeting, each of which has its own threshold of votes required for approval as described below in Vote Required. First, FFN shareholders will be asked to approve the FFN merger proposal. Second, FFN shareholders will be asked to elect seven directors to serve until the 2015 annual meeting of shareholders. Third, FFN shareholders will also be asked to ratify the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014. Fourth, FFN shareholders will be asked to approve the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000. Finally, FFN shareholders will also be asked to consider a proposal to authorize the board of directors to adjourn the annual shareholders meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the annual shareholders meeting, in person or by proxy, to approve any of the matters to be considered at the annual meeting. Each copy of this joint proxy statement/prospectus mailed to FFN shareholders is accompanied by a proxy form for use at the annual shareholders meeting, or FFN shareholders may vote by telephone or through the Internet.
MidSouth. At the MidSouth special shareholders meeting, MidSouth shareholders will be asked to consider two scheduled items of business and any other business that may properly come before the MidSouth special meeting, each of which has its own threshold of votes required for approval as described below in Vote Required. The first item for consideration is approval of the merger agreement. Under the merger agreement, MidSouth will merge with and into FBS, a wholly-owned subsidiary of FFN, with FSB surviving the merger. Each share of MidSouth stock will be converted into the right to receive 0.425926 shares of FFN common stock; each share of MidSouth preferred stock will be converted into the right to receive 0.851852 shares of FFN common stock; each warrant to purchase shares of MidSouth stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50; and each option to purchase a share of MidSouth stock will be converted into an option to purchase a share of FFN common stock multiplied by the exchange ratio of one share of MidSouth stock equating to 0.425926 shares of FFN common stock (the Exchange Ratio) and the exercise price will become the exercise price of such option divided by the Exchange Ratio. Options to acquire MidSouth common stock that are considered qualified options will be converted into qualified options of FFN common stock and options to purchase MidSouth stock that are not qualified will be converted into non-qualified options to acquire FFN common stock. In lieu of the issuance of any fractional shares of FFN common stock, FFN will pay to each former MidSouth shareholder who would otherwise be entitled to receive such fractional share an amount in cash determined by multiplying (i) $13.50 by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of FFN common stock to which such holder would otherwise be entitled to receive.
As the second item of schedule business, MidSouth shareholders will also be asked to consider a proposal to authorize the board of directors to adjourn the special shareholders meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the special shareholders meeting, in person or by proxy, to approve the merger agreement.
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Finally, MidSouth shareholders may also be asked to consider any other business that properly comes before the special shareholders meeting. Because of the limitations in MidSouths charter and bylaws, each as amended, and Tennessee corporate law, it is unlikely that unscheduled business other than ministerial matters such as consideration of the minutes of the most recent MidSouth shareholders meeting, may properly be brought before the special meeting. It is expected that, as to any such non-ministerial unscheduled business, the chair of the meeting will rule it out of order and it is also expected that the proxies designated by MidSouth will vote the share for which they hold proxies, as to any matter inconsistent with the Merger Agreement and/or the planned merger, against such matter.
Each copy of this joint proxy statement/prospectus mailed to MidSouth shareholders is accompanied by a proxy form for use at the special shareholders meeting. If you are a holder of common stock, you will receive a pastel YELLOW proxy sheet and, if you hold preferred stock of any series, you will receive a pastel BLUE proxy sheet. (Of course, you may receive both if you hold both common and preferred MidSouth stock.) PLEASE VOTE ALL OF YOUR SHARES BY MARKING YOUR SELECTIONS, DATING, SIGNING AND RETURNING YOUR PROXY OR PROXIES TO US WITHOUT DELAY. If you fail to vote, that can count, in essence, as a vote against the proposed merger. See SHAREHOLDERS MEETINGS - Voting of Proxies.
FFN. Approval of the FFN merger proposal requires the affirmative vote of the holders of a majority of the outstanding shares of FFN common stock entitled to vote at the annual shareholders meeting. Directors will be elected by a plurality of the votes cast by holders of shares entitled to vote at the annual meeting, which means that the seven nominees receiving the largest number of affirmative votes will be elected to FFNs board of directors. Ratification of the selection of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014 will require the affirmative vote of the holders of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter. Approval of the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000 requires the affirmative vote of the holders of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter. Approval of the proposal to authorize adjournment will require the affirmative vote of a majority of shares of common stock present in person or by proxy and entitled to vote on the matter.
On the record date, there were approximately outstanding shares of FFN common stock, each of which is entitled to one vote at the special meeting. On that date, the directors and officers of FFN and their affiliates beneficially owned a total of approximately % of the outstanding shares of FFN common stock. The presence, in person or by proxy, of shares of FFN common stock representing a majority of FFNs outstanding shares entitled to vote at the annual shareholders meeting is necessary in order for there to be a quorum at the annual shareholders meeting. A quorum must be present in order for the vote on each of the proposals to occur. However, if there is no quorum, then the FFN annual meeting can be postponed or adjourned until such time as a quorum can be obtained.
MidSouth. Approval of the merger agreement requires the affirmative vote of the holders of a majority of the outstanding shares of MidSouth common and preferred stock (that is, MidSouth voting stock) entitled to vote at the MidSouth special shareholders meeting. Approval of the proposal to authorize adjournment will require the affirmative vote of a majority of shares of MidSouth voting stock present in person or by proxy and entitled to vote on the matter.
On the record date, there were approximately outstanding shares of MidSouth voting stock, each of which is entitled to one vote at the special shareholders meeting. On that date, the directors and executive officers of MidSouth and their affiliates beneficially owned a total of approximately % of the outstanding shares of MidSouth stock. The presence, in person or by proxy, of shares of MidSouth voting stock representing a majority of MidSouths outstanding shares entitled to vote at the special meeting is necessary in order for there to be a quorum at the special shareholders meeting. A quorum must be present in order for the vote on the merger agreement or the proposal to adjourn the MidSouth special meeting to occur. However, if there is no quorum, then the MidSouth special meeting can be postponed or adjourned until such time as a quorum can be obtained.
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FFN. Shares of common stock represented by properly executed proxies received at or prior to the FFN annual shareholders meeting will be voted at the annual shareholders meeting in the manner specified by the holders of such shares. Properly executed proxies that do not contain voting instructions will be voted FOR approval of the FFN merger proposal, all of the nominees for election as directors, ratification of Crowe Horwath LLP as independent registered public accounting firm for 2014, the amendment of FFNs 2007 Omnibus Equity Incentive Plan to increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000, and the proposal to authorize adjournment.
Any record shareholder present in person or by proxy at the annual shareholders meeting who abstains from voting will be counted for purposes of determining whether a quorum exists.
Because approval of the FFN merger proposal and approval of the amendment to FFNs 2007 Omnibus Equity Incentive Plan require the affirmative vote of a majority of all outstanding shares of FFN common stock entitled to vote at the FFN annual shareholders meeting, abstentions and broker non-votes will have the same effect as negative votes on these proposals. Accordingly, FFNs board of directors urges its shareholders to vote by telephone, through the Internet, or by completing, dating, and signing the accompanying proxy form and return it promptly in the enclosed, postage-paid envelope. A broker non-vote occurs if you hold shares beneficially in street name, and if you do not provide your broker with voting instructions. Generally, broker non-votes occur on a matter when a broker is not permitted to vote on that matter without instructions from the beneficial owner and instructions are not given. In tabulating the voting result for any particular proposal, shares that constitute broker non-votes are counted as present for quorum purposes but not considered in the vote on that proposal. Broker non-votes will not affect the outcome of any other matter being voted on at the meeting, assuming that a quorum is obtained.
Other than with respect to the proposals to approve the FFN merger proposal and the amendment to FFNs 2007 Omnibus Equity Incentive Plan, abstentions will not be counted as a vote for or against a particular proposal and will not be counted in determining the number of votes cast on the proposal to authorize adjournment.
If you have any questions about the annual meeting, the proposals, or how to vote, please contact Richard E. Herrington at FFN at (615) 236-2265.
MidSouth. Shares of common and preferred stock represented by properly executed proxies received at or prior to the MidSouth special shareholders meeting will be voted at the special shareholders meeting in the manner specified by the holders of such shares. Properly executed proxies that do not contain voting instructions will be voted FOR approval of the merger agreement and the proposal to authorize adjournment.
Any record shareholder present in person or by proxy at the special shareholders meeting who abstains from voting will be counted for purposes of determining whether a quorum exists.
Because approval of the merger agreement requires the affirmative vote of a majority of all outstanding shares of MidSouth voting stock entitled to vote at the MidSouth special shareholders meeting, abstentions and broker non-votes will have the same effect as votes against the merger. Accordingly, MidSouths board of directors urges its shareholders to complete, date, and sign the accompanying proxy form and return it promptly in the enclosed, postage-paid envelope. A broker non-vote occurs if you hold shares beneficially in street name, and if you do not provide your broker with voting instructions. Generally, broker non-votes occur on a matter when a broker is not permitted to vote on that matter without instructions from the beneficial owner and instructions are not given. In tabulating the voting result for any particular proposal, shares that constitute broker non-votes are counted as present for quorum purposes but not considered in the vote on that proposal. Broker non-votes will not affect the outcome of any other matter being voted on at the meeting, assuming that a quorum is obtained.
If you have any questions about the special meeting, the proposals, or how to vote, please contact Lee Moss at MidSouth at (615) 278-7100 (long-distance callers may call toll-free by dialing (866) 278-7899).
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FFN. If you are a record shareholder, the grant of a proxy on the enclosed proxy card does not preclude you from voting in person or otherwise revoking your proxy. If you are a record shareholder, you may revoke a proxy at any time prior to its exercise by delivering to the Corporate Secretary of FFN either a duly executed revocation or a proxy bearing a later date. In addition, if you are a record shareholder, you may revoke a proxy prior to its exercise by voting in person at the annual shareholders meeting. All written notices of revocation and other communications with respect to the revocation of FFN proxies should be addressed to Franklin Financial Network, Inc., 722 Columbia Avenue, Franklin, Tennessee 37064, Attention: Corporate Secretary. Attendance at the annual shareholders meeting will not in and of itself constitute revocation of a proxy.
MidSouth. If you are a record shareholder, the grant of a proxy on the enclosed proxy card does not preclude you from voting in person or otherwise revoking your proxy. If you are a record shareholder, you may revoke a proxy at any time prior to its first exercise at the MidSouth special meeting by delivering to the Corporate Secretary of MidSouth either a duly executed revocation or a proxy bearing a later date. In addition, if you are a record shareholder, you may revoke a proxy prior to its first exercise by voting in person at the special shareholders meeting. However, your attendance alone will not be sufficient to revoke your proxy. If you intend to revoke your proxy by attending the special meeting, you will need to advise Dee Jernigan, our Corporate Secretary, or one of the Judges of the Election (who will be available at a table in the lobby at the time of the special meeting) of your decision before your proxy is first voted. You will be provided a form to sign to state that you are revoking one or more of your proxies and provided a ballot with which to cast your votes as to the scheduled business items. Or, after revoking your proxy or proxies, you may abstain from voting on either or both of the proposals to be voted on by MidSouth shareholders). All written notices of revocation and other communications with respect to the revocation of MidSouth proxies should be addressed to MidSouth Bank, One East College Street, Murfreesboro, Tennessee 37130, Attention: Corporate Secretary.
FFN. FFN will pay all of the costs of soliciting proxies in connection with its annual shareholders meeting, one-half of the costs of filing the registration statement with the SEC, of which this joint proxy statement/prospectus is a part, and one half of the costs of printing this joint proxy statement/prospectus. Solicitation of proxies may be made in person or by mail, telephone, or facsimile, or other form of communication by directors, officers, and employees of FFN who will not be specially compensated for such solicitation. Nominees, fiduciaries, and other custodians will be requested to forward solicitation materials to beneficial owners and to secure their voting instructions, if necessary, and will be reimbursed for the expenses incurred in sending proxy materials to beneficial owners.
No person is authorized to give any information or to make any representation not contained in this joint proxy statement/prospectus and, if given or made, such information or representation should not be relied upon as having been authorized by MidSouth, FSB, FFN, or any other person. The delivery of this joint proxy statement/prospectus does not, under any circumstances, create any implication that there has been no change in the business or affairs of MidSouth, FSB or FFN since the date of the joint proxy statement/prospectus.
MidSouth. MidSouth will pay all of the costs of soliciting proxies in connection with its special shareholders meeting, one-half of the costs of filing the registration statement with the SEC, of which this joint proxy statement/prospectus is a part, and one-half of the costs of printing this joint proxy statement/prospectus. Solicitation of proxies may be made in person or by mail, telephone, or facsimile, or other form of communication by directors, officers, and employees of MidSouth who will not be specially compensated for such solicitation. Nominees, fiduciaries, and other custodians will be requested to forward solicitation materials to beneficial owners and to secure their voting instructions, if necessary, and will be reimbursed for the expenses incurred in sending proxy materials to beneficial owners.
Recommendation of the Boards of Directors
FFN. FFNs board of directors has determined that the FFN merger proposal, the election of the nominees for election as directors, the ratification of Crowe Horwath LLP as FFNs independent registered public accounting firm for 2014, and the amendment of FFNs 2007 Omnibus Equity Incentive Plan to
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increase the number of shares of FFNs common stock available for issuance under the plan from 1,500,000 to 2,000,000 are in the best interests of FFN and its shareholders. The members of the FFN board of directors unanimously recommend that FFN shareholders vote FOR these proposals.
In the course of reaching its decision to approve the FFN merger proposal, FFNs board of directors, among other things, consulted with its legal advisors, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, regarding the share issuance and the legal terms of the merger agreement, and with its financial advisor, SunTrust Robinson Humphrey (STRH), as to the financial merits of the share issuance to the shareholders of FFN. For a discussion of the factors considered by FFNs board of directors in reaching its conclusion, see FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERBackground of the Merger and FFNs Reasons for the FFN merger proposal; Recommendation of the FFN Board of Directors.
MidSouth. MidSouths board of directors has determined that the merger agreement and the transactions contemplated by it are in the best interests of MidSouth and its shareholders. The board of directors of MidSouth recommends that the MidSouth shareholders vote FOR this proposal at the special shareholders meeting.
In the course of reaching its decision to adopt the merger agreement and the transactions contemplated in the merger agreement, MidSouths board of directors, among other things, consulted with its legal advisor, Daniel W. Small & Company, regarding the legal terms of the merger agreement, and with its financial advisor, Sterne Agee, as to the fairness, from a financial point of view, of the exchange ratio of the merger consideration to be received by the holders of MidSouth stock in the merger. For a discussion of the factors considered by MidSouths board of directors in reaching its conclusion, see FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGERBackground of the Merger and MidSouths Reasons for the Merger; Recommendation of the MidSouth Board of Directors.
MidSouth shareholders should note that MidSouths directors have certain interests in, and may derive benefits as a result of, the merger that are in addition to their interests as shareholders of MidSouth. See FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGER Interests of Certain MidSouth Executive Officers and Directors in the Merger.
FFN AND MIDSOUTH
FFNs board of directors is using this joint proxy statement/prospectus to solicit proxies from the holders of FFN common stock for use at the FFN annual meeting. MidSouths board of directors is also using this document to solicit proxies from the holders of MidSouth stock for use at the MidSouth annual meeting. At the FFN annual meeting, holders of FFN common stock will be asked to vote on, among other things, the approval of the FFN merger proposal. At the MidSouth special meeting, holders of MidSouth stock will be asked to vote on, among other things, the approval of the merger agreement.
The merger will not be completed unless FFNs shareholders approve the FFN merger proposal and MidSouths shareholders approve the merger agreement.
This section of this joint proxy statement/prospectus describes certain aspects of the merger, including the background of the merger and the parties reasons for the merger.
The FFN board of directors and the MidSouth board of directors each has adopted the merger agreement, which provides for the merger of MidSouth with and into Franklin Synergy Bank (or FSB) and the FFN board also has approved the issuance by FFN of shares of FFN common stock to MidSouth shareholders in connection with the merger. FSB will be the surviving corporation subsequent to the merger. We expect to complete the merger in the first or second quarter of 2014. Each share of FFN common stock issued and outstanding at the effective time of the merger will remain issued and outstanding as one share of common stock of FFN, and each share of MidSouth stock
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and preferred stock issued and outstanding at the effective time of the merger will be converted into FFN common stock (with each share of MidSouth common stock being converted into 0.425926 shares of FFN common stock and each share of MidSouth preferred stock being converted into 0.851852 shares of FFN common stock and with fractional shares being paid in cash as described below). See THE MERGER AGREEMENT Merger Consideration.
The FSB charter and bylaws will be the charter and bylaws of the combined company after the completion of the merger. At the effective time of the merger, the FFN and FSB boards of directors will each be expanded by three members. These board vacancies will be filled by three members of the existing MidSouth board of directors who are proposed by MidSouth, and reasonably acceptable to FFN, and will include Lee M. Moss, the current chairman and chief executive officer of MidSouth and current MidSouth directors, Jimmy Allen and Matthias B. Murfree, III. See COMPARATIVE RIGHTS OF FFN AND MIDSOUTH SHAREHOLDERS; INTERESTS OF CERTAIN MIDSOUTH EXECUTIVE OFFICERS AND DIRECTORS IN THE MERGER; MIDSOUTH STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS; and INFORMATION ABOUT MIDSOUTH - MidSouth Corporate Governance.
The merger agreement provides that the parties can amend the merger agreement, to the extent legally permissible. However, after any approval of the merger agreement by MidSouth and FFN shareholders, no amendment can alter the kind or amount of consideration to be provided to MidSouth shareholders without further approval by MidSouth and FFN shareholders.
The organizers of MidSouth had two primary objectives when forming the institution: (1) to provide a profitable long-term investment for those who invested (some of the largest investors being the organizers) and (2) to establish a community bank committed to its customers and other stakeholders. (The term stakeholders includes shareholders, customers, employees, suppliers, directors, and the communities MidSouth serves.) Since MidSouth opened in January 2004, it worked hard to be The Hometown Bank for Rutherford County believing that it could play a significant community banking role in the growth of Rutherford County and the surrounding area.
While MidSouths original goals have not changed, it believes that the banking landscape for community banks has changed materially since 2004. First, the broad metropolitan market in which MidSouth operates (called the MSA or the Nashville-Davidson-Franklin-Rutherford MSA) has become increasingly competitive. Second, the financial strains MidSouth, along with the industry as a whole, experienced during the Great Recession have limited its ability to achieve the profitable growth that it believes is important in driving shareholder value. Finally, the costs of compliance with regulatory changes (such as the Dodd-Frank Act) appear to MidSouth to be a reason to increase its scale so that higher costs of compliance can be spread over a larger asset base.
Both MidSouths board of directors and management have always felt that enhancing shareholder value and paying dividends as a return on investment were important goals. Initially, the plan was to achieve these on a stand-alone basis. During 2012, some shareholders and members of MidSouths executive committee began discussing the possibility of selling the bank or engaging in a strategic partnership to accelerate the return on investment to its shareholders. Although both approaches outright sale to a larger bank or a strategic partnership - involved selling control of the bank, the prospect of a strategic partnership meant that some members of MidSouths management and its board of directors would continue to play a role in the combined company, thus retaining some measure of local Rutherford County influence.
During this same time period, FFNs board of directors was considering various growth plans in light of the ever-evolving banking environment. On September 21, 2012, FFNs board of directors gathered for a strategic planning session to discuss the escalating regulatory concerns and compliance requirements that continued to strain the resources of community banks. Specifically, the FFN board noted that efficiencies of scale had become increasingly important to ensure that shareholder value is positively impacted. While FFN has had and continues to enjoy successful organic growth, its directors recognized that moving forward profitably would require continual evaluation of FFNs business plans and models. As such, FFNs board of directors and executive management began to explore not only branching opportunities in the dynamic market in which the bank currently operates, but also acquisition opportunities in the Middle Tennessee area where FFN could profitably expand its geographic footprint. Key components of target areas were financial stability and future market growth opportunities, strength, and anticipated growth of employment, as well as diversity in the business sector. Additionally, from a management perspective, the FFN board considered key bankers sharing similar business and banking philosophies.
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Rutherford County expansion had been discussed by FFNs board as a probable next step for growth due to geographic proximity as well as forecasted economic development in the area. FFNs board considered branching opportunities there, as well as possible strategic merger partners. In so doing, Richard Herrington, Chief Executive Officer (the CEO) of FFN, approached Lee Moss, CEO of MidSouth, to discuss FFNs growth opportunities in Rutherford County, sharing his vision for faster growth through an acquisition rather than starting branches in the area. While MidSouth had not been actively pursuing a buyer, its board of directors considered the outlook for bank consolidation in the MSA, and thought it was wise to merge on the front end and to do so with a strong partner. MidSouth had an interest in being in Williamson County, and FSB had an interest in being in Rutherford County. Accordingly, both boards concluded that it would be cheaper and more efficient to join together as partners in order to enter into the respective markets, concluding that doing so would ultimately provide a greater return to MidSouth and FSB shareholders. In early December of 2012, the respective managements of FFN and MidSouth began substantively discussing the prospects of a strategic partnership in which FFN, as the larger company, would be the acquirer.
Concurrently in December of 2012, at the direction of the MidSouth boards executive committee, MidSouths executive management began to explore other alternatives to enhance shareholder value. Such possibilities included the payment of dividends on MidSouths stock or other options to accelerate the appreciation in its stock price. MidSouth contacted Sterne Agee, an investment banking firm. Sterne Agee prepared its own analysis of the opportunities for MidSouth to remain independent, sell to a larger institution, or to enter into a strategic partnership with another community bank headquartered in the MSA. Sterne Agee presented its analysis to MidSouths executive committee on January 3, 2013. The executive committee gave close attention to the options described by Sterne Agee.
The MidSouth executive committee met several times throughout the first quarter of 2013, seeking the input of executive management, MidSouths corporate legal counsel, and other professionals. After extensive discussion, the executive committee invited FFN to make a presentation on a potential strategic partnership. On March 7, 2013, MidSouth and FFN executed a mutual non-disclosure and confidentiality agreement to allow for the exchange of a limited amount of due diligence information. On March 25, 2013, representatives of STRH and members of FFNs senior management met to discuss a potential transaction between FFN and MidSouth. At the meeting, FFN executed a confidentiality agreement and reviewed with STRH a presentation on the possibilities of a merger with MidSouth. On March 25, 2013, representatives of STRH and members of FFNs senior management met to discuss a potential transaction between FFN and MidSouth. At the meeting, FFN executed a confidentiality agreement and reviewed with STRH a presentation on the possibilities of a merger with MidSouth. On April 1, 2013, the CEO and other representatives of FFN met with the MidSouth executive committee for several hours to discuss the merits of the potential strategic partnership between the two banks. As part of this meeting, FFN presented MidSouth with a preliminary, non-binding letter of interest addressing the structure and price of a possible business combination.
After the FFN representatives left the meeting, the MidSouth executive committee determined that they needed additional information and analysis in order to properly evaluate the FFN proposal. The MidSouth executive committee and management met with MidSouths corporate legal counsel, had discussions regarding MidSouths deferred tax asset and its possible impact on MidSouth (and its value to MidSouth and any acquiring institution) with MidSouths external accountants, and had multiple conversations with Sterne Agee. The MidSouth executive committee was extremely interested in the compatibility it perceived in FFN but chose to make a decision in favor of MidSouths stand-alone strategy versus merger with another institution only after due consideration and analysis of various alternatives.
On April 11, 2013, at the direction of the MidSouth executive committee, Mr. Moss informed FFN that the presentation had resulted in MidSouth electing to further consider its options, including conducting its own review of MidSouths valuation. While MidSouth was not interested in a combination at that time and under the terms outlined in the FFNs preliminary, non-binding letter of interest, Mr. Moss stated that he and the MidSouth executive committee were impressed with the possibilities of a business combination and left the door open for future dialogue. Chairman Moss then had numerous conversations with executives of other selected banks about possible partnership strategies with MidSouth but he and the members of MidSouths executive committee were ultimately convinced that the banks shareholders and other stakeholders would benefit more from a strategic alliance with FFN than with any other institution.
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The MidSouth executive committee actively debated the merits of a combination with another institution or continuing, at least for some period of time, as a stand-alone, independent community bank. The MidSouth executive committee analyzed its options with two primary goals: (1) to enhance shareholder value and (2) continue to be a major resource for the communities served by MidSouth.
In June of 2013, MidSouth Chairman Moss met informally with a representative of Sterne Agee and discussed matters of importance to MidSouth related to a combination with FFN-FSB and expressed his belief that, if FFN-FSB were receptive to certain changes in their earlier proposal, then he believed that MidSouths executive committee would be willing to consider a new proposal. On August 6, 2013, Chairman Moss, a representative from Sterne Agee, Richard Herrington, the CEO of FFN, and FFNs financial advisor met to discuss a potential strategic partnership between MidSouth and FFN. At the meeting, the parties reviewed a presentation concerning the strategic rationale of such a transaction, the potential financial impact to both banks, and the potential impact on shareholder value for both companies shareholders. Following this meeting, Chairman Moss discussed a potential transaction with the executive committee and selected members of senior management of MidSouth. The decision was made to continue pursuing a transaction based on the preliminary revised terms outlined during the August 6th meeting.
On September 16, 2013, MidSouth again engaged Sterne Agee as its Financial Advisor to assist in analyzing and negotiating any offer that might be received by MidSouth from FFN. Subject to the mutual confidentiality agreement executed in March 2013, MidSouth, FFN and their representatives began an extensive due diligence review. Bank personnel from both MidSouth and FFN met on multiple occasions to review information and discuss a potential combination.
On October 16, 2013, representatives from Sterne Agee met with MidSouths executive committee to review a potential transaction with FFN. Sterne Agee reviewed financial information on both banks, the proposed terms on the transaction, the financial impact of a transaction, and the impact on MidSouths shareholder value. The results of the due diligence review to date and next steps in the transaction process were also discussed.
Following several weeks of due diligence and meetings between the two banks and their representatives, FFN presented MidSouth with a proposed form of merger agreement on October 29, 2013. Extensive discussions and negotiations between the executive management, financial advisors, legal counsel, and tax advisors took place over the next few weeks prior to the approval and signing of the definitive merger agreement.
The FFN board met at a special meeting on November 12, 2013 to review the results of due diligence and the terms of the proposed merger. At this meeting, STRH discussed certain data and related information regarding the financial merits of the transaction to FFN and its shareholders. After consultation with its legal and financial advisors, on November 19, 2013 the boards of directors of FFN and FSB approved unanimously the merger agreement and the issuance of FFN common stock in connection with the merger and recommended the approval of the merger agreement and the issuance of FFN common stock in connection with the merger by FFN shareholders.
The MidSouth board met in a special meeting on November 12, 2013 to review the potential transaction with FFN. This meeting lasted approximately five hours and involved extensive presentations by Sterne Agee and Chairman Moss on the proposed combination, the results of due diligence, the proposed terms of the merger, the impact on shareholders, and the effect on various stakeholder groups. Management made it clear that the purpose of this meeting was to inform the directors of the terms of the proposed merger and not to take a binding vote. Directors asked questions of management, Sterne Agee, and the banks corporate legal counsel. MidSouths counsel provided the board members with both a written and oral analysis of the proposed merger agreement from a legal perspective.
On November 20, 2013 the MidSouth board of directors met for its regular monthly board meeting. After considering the usual monthly business, the board turned to the issue of the proposed merger with FFN. MidSouths corporate counsel and a representative from Sterne Agee were also present. Legal counsel advised the members of the board that the material terms of the transaction had not changed since the November 12th meeting but also advised the board members that they were under no deadline to vote on the document. Legal counsel advised the
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board members that they were not required to approve or disapprove the merger agreement until they were satisfied with their understanding of its pros, cons, terms, conditions, and costs. The MidSouth boards discussion of the transaction and definitive merger agreement lasted more than four hours at this meeting. MidSouths management made a presentation concerning its very favorable views of the potential advantages of the merger. Sterne Agee then made a detailed presentation concerning its evaluation and analysis of the fairness of the exchange ratio to MidSouths shareholders from a financial point of view as of the date of this meeting. The MidSouth directors asked extensive questions of management, Sterne Agee, and corporate legal counsel in its evaluation of the merger proposal. The MidSouth directors expressed special concern about the impact of the proposed merger on all of the banks stakeholders, including shareholders, depositors and other customers, employees, and the communities that MidSouth serves. After extensive discussions, questions and answers, Chairman Moss asked the board members if they were ready to vote on the merger agreement. After a few additional questions, members of the MidSouth board voted unanimously to approve the merger agreement, to recommend it to the shareholders for approval by a majority of all outstanding shares of MidSouth common stock and preferred stock entitled to vote on the matter, and to call a meeting of the MidSouth shareholders to consider and vote on the merger agreement upon the effectiveness of the FFN registration statement of which this joint proxy statement/prospectus is a part.
Sterne Agree has since delivered its written fairness opinion, consistent with its presentation to the November 20, 2013 board meeting, dated November 21, 2013. A copy of that opinion is included as Appendix C to this joint proxy statement/prospectus.
The merger agreement among MidSouth, FSB and FFN was executed on November 21, 2013. The transaction was first publicly announced on Thursday, November 21, 2013 by a press release jointly issued by FFN and MidSouth.
FFNs Reasons for the Merger; Recommendation of the FFN Merger Proposal by the FFN Board of Directors
The FFN board of directors has determined that the merger is advisable, fair and in the best interest of FFN and its shareholders. In adopting the merger agreement, the FFN board consulted with its financial advisor with respect to the financial merits of the share issuance to FFNs shareholders and the financial merits of the transaction, and with its legal counsel as to its legal duties and the terms of the merger agreement. In arriving at its determination, the FFN board of directors also considered a number of factors, including the following material factors:
| the merger is fair to FFN and the FFN shareholders from a financial point of view; |
| the merger brings to FFNs team a number of outstanding bankers; |
| the two institutions have potential synergies FFN will be utilizing MidSouths current work force to help with FFNs growth and to help with the synergy; |
| the merger enables FFN to significantly accelerate its penetration of the targeted market, specifically Murfreesboro and Rutherford County, Tennessee; |
| the merger will enable FFN to increase its size and scale; |
| the merger is anticipated to enhance the franchise value of FFN, both in the short-run and in the long-run; |
| the merger is expected to enhance FFNs geographic market coverage; |
| the merger is expected to be accretive to FFNs earnings beginning in 2014; |
| the merger provides FFN a larger, growing, lower cost source of funding; |
| the merger enables FFN to diversify its revenue mix in a meaningful way; |
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| the merger valuation multiples are similar to those of recent business combinations involving southeastern financial institutions, either announced or completed, during the past few years; |
| the merger will generally be a tax-free transaction for FFN and its new shareholders to the extent such shareholders receive shares of FFN common stock; and |
| the merger will result in FFN and its bank subsidiary being well-capitalized institutions, the financial positions of which would be in excess of all applicable regulatory capital requirements. |
The foregoing discussion of the information and factors considered by the FFN board of directors is not exhaustive, but includes all material factors considered by the FFN board of directors. In view of the wide variety of factors considered by the FFN board of directors in connection with its evaluation of the merger and the complexity of such matters, the FFN board of directors did not consider it practical to, nor did it attempt to, quantify, rank or otherwise assign relative weights to the specific factors that it considered in reaching its decision. The FFN board of directors discussed the factors described above, asked questions of FFNs management and FFNs legal and financial advisors, and reached general consensus that the merger was in the best interests of FFN and FFN shareholders.
In considering the factors described above, individual members of the FFN board of directors may have given different weights to different factors. It should be noted that this explanation of the FFN boards reasoning and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed under the heading CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS above.
The FFN board of directors determined that the merger, the merger agreement and the issuance of FFN common stock in connection with the merger are in the best interests of FFN and its shareholders.
For the reasons set forth above, the FFN board of directors has adopted unanimously the merger agreement and approved the issuance of FFN common stock in connection with the merger and believes that it is in the best interests of FFN and its shareholders and unanimously recommends that its shareholders vote FOR this proposal.
MidSouths Reasons for the Merger; Recommendation of the Merger by the MidSouth Board of Directors
In reaching its decision to adopt the merger agreement and recommend the merger to its shareholders, the MidSouth board of directors considered a number of factors concerning the proposed merger. The board consulted with MidSouths management and with its legal and financial advisors. The following list of factors includes those deemed most important by the board, though the order of presentation below is not intended to indicate that one factor was more important to every director than another or that every director believed every one of the listed factors to be important. There were, in the boards view, both positive and negative considerations.
The overriding premise turned on the need to enhance shareholder value while giving due consideration to the impact on MidSouths customers, employees, and the communities it serves. The factors considered by the board of directors included:
| Its analysis of the opportunities available to MidSouth on a stand-alone basis premised on internal (organic) growth compared with a sale of the bank or a strategic partnership with a bank that would be compatible with the needs of Rutherford County and surrounding counties (the MSA). As considered by the MidSouth board of directors, the concept of a strategic partnership involves the sale of the bank to a successful financial institution that will involve members of MidSouths executive management and board of directors in the combined banks executive management and board of directors, thus permitting MidSouth management and directors to have ongoing input into the management of the combined bank; |
| An analysis of the most efficient and timely manner of either providing a return on investment to its shareholders, through dividends, and/or increasing the value of each share of MidSouth stock, and preferably both; |
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| Its analysis of the merits and disadvantages of a sale of the bank to a wide range of possible financial companies; |
| Its analysis of the advantages and disadvantages of forming a strategic partnership with other financial institutions located or doing business in the MSA; |
| Its analysis of the merits of selling the bank to a larger institution as compared with pursuing a strategic partnership; |
| Its analysis of the opportunities available to MidSouth based on an acquisition of another financial institution in or near the MSA, including the likelihood that such an acquisition could be expected to require MidSouth to raise additional capital thus possibly further diluting the ownership of current shareholders; |
| A favorable analysis over the course of nearly a year of FFN and FSB as compatible strategic partners; |
| A less favorable analysis of other potential acquirers, strategic partners, or acquisition targets; |
| A belief that a tax-free stock exchange was preferable to an all-cash, taxable transaction; |
| The determination that the future projected stock values of a combination with FFN and FSB, based on projected earnings of both banks, would be substantially greater than if both banks continued to operate independently; |
| The belief, based on discussions with Sterne Agee and others believed to be knowledgeable, that as a combined company with assets greater than $1 billion the combined company would be better positioned to attract new capital at lower costs and to spread its operational costs over a greater asset base, thus improving efficiency; |
| FFN and MidSouths perception that although their primary counties (Rutherford and Williamson) are geographically contiguous, their markets are very different from a socio-economic perspective. MidSouths management believed that this diversity will benefit the combined bank during economic downturns, while also rewarding the bank during prosperous times since our two counties are independently and collectively the fastest growing markets in the state and southeast; |
| A concern that MidSouth might be more valuable in the future with a longer history of sustained profitability after the Great Recession compared against the perceived opportunities and benefits presented by the proposed merger with FSB at the present time; |
| The belief that MidSouths management will have a greater impact on overall management of the combined company, and greater representation at executive and board levels, than might be true if a merger with FSB were postponed; |
| The belief that the proposed merger enables MidSouths management team to have a major voice in the direction of the newly combined bank, along with more representative board leadership; |
| The favorable and productive working relationship that has developed between MidSouth management and FFN-FSB management during discussions and negotiations occurring over the past year; |
| MidSouths analysis of the impact on MidSouth shareholders and other stakeholders if MidSouth chose to be acquired by another institution; |
| MidSouths analysis of the role of MidSouth as a community bank committed to timely, locally oriented, business decision making with respect to loans and other products; |
|
MidSouths favorable evaluation, in consultation with its Financial Advisor, of FFN and FSB as suitable strategic partners in enhancing its ability to grow, to provide community banking services, and |
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increasing anticipated shareholder value, particularly as to per-share value, by entering into the merger agreement with FSB and FFN as opposed to either a go it alone strategy or a combination with another possible partner, target, or acquirer; |
| A somewhat negative perception that FFN, like MidSouth, is more likely to re-invest its earnings to enhance its ability to grow than it is to pay dividends; |
| A positive perception that the combined companys stock may be more liquid and more valuable than would be true of MidSouth stock on a stand-alone basis; |
| MidSouths belief that the FFN FSB executive management team, supplemented by the inclusion of MidSouth executives in that executive management team, has the ability to effectively take the combined company into the billion-dollar plus asset size; |
| MidSouths analysis of the business, operations, financial condition, earnings and prospects of the combined company, taking into account the results of its due diligence review; |
| The strategic nature of the business combination, the perceived complimentary businesses of FSB and MidSouth, the potential prospects of the combined company, including anticipated savings derived from potential synergies; |
| A concern that both banks loans are frequently secured by real estate, a potential problem in the event of another economic downturn; |
| The fact that the combined company is expected to be one of the largest bank holding companies headquartered in Middle Tennessee with assets of approximately $1.0 billion and a strong presence in the MSA, particularly the fast-growing Williamson and Rutherford county markets; |
| The financial analyses presented by Sterne Agee to the MidSouth board of directors and the oral opinion delivered by Sterne Agee, to the effect that, as of November 20, 2013 (which opinion was confirmed in a written opinion dated November 21, 2013), and based upon and subject to the assumptions made, matters considered and limitations set forth in the opinion, the exchange ratio governing the merger consideration specified in the merger agreement was fair from a financial point of view to the holders of shares of MidSouth stock; |
| The value of the consideration to be received by MidSouths shareholders in the merger ratio represents at least a premium equal to approximately 1.33 times the book value for MidSouth stock on September 30, 2013; |
| The fact that MidSouth shareholders would own approximately 36% of the combined company; |
| The fact that MidSouth executives Lee M. Moss and Dallas G. Caudle, Jr., Kevin D. Busbey, and D. Edwin Jernigan, Jr. will become members of the senior management team of the combined bank, with Mr. Moss serving as the President of FSB, reporting directly to the chief executive officer of FSB, and other senior executive officers of MidSouth will serve in senior positions in FSB. Among others, Mr. Caudle will be Executive Vice President and Rutherford County Community President for the combined bank, Mr. Busbey will the Chief Financial Officer for the combined bank, and Mr. Jernigan will lead the combined banks wealth management program; |
| The fact that three members of MidSouths board of directors would serve on the board of the combined company, thus providing continued input of MidSouth directors after the merger is completed (see Interests of Certain MidSouth Executive Officers and Directors in the Merger); |
| MidSouths belief that a significant number of its existing employees would be offered employment with the combined company and become eligible to participate in the combined companys benefit plans and its omnibus equity incentive plan; |
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| The factors set forth in MidSouths charter with respect to the boards consideration of any proposed business combination; |
| The expected treatment of the merger as a reorganization for federal income tax purposes which would generally allow MidSouth shareholders receiving FFN common stock in the merger to avoid recognizing gain or loss upon conversion of shares of MidSouth stock into shares of FFN common stock; |
| The fact that those who receive cash in the merger will experience a taxable event; |
| The fact that, after the merger, the shareholders of MidSouth would be expected to be a minority of the total shareholder interests in the combined company and thus unable to control the election of even one member of the board of directors, the election of officers, or the combined companys policies and decisions; |
| The possibility that the combined company would not achieve its projected growth and earnings estimates; |
| The possibility that the combination of the banks would not be achieved timely or effectively, thus undermining the combined companys ability to achieve its growth and earnings targets; |
| The costs of the transaction to MidSouth in the event the merger were not completed, including savings lost due to deferring long-term contract extensions in contemplation of the proposed merger; |
| The possible impact of any conflicts of interest involving those members of executive management (Messrs. Moss, Caudle, Busbey and Jernigan), who will receive employment contracts and/or retention bonuses from FSB, and of the three directors (Messrs. Allen, Moss and Murfree) who will be elected to the FFN and FSB boards of directors; |
| The risk that the merger will not enhance the value of the stock of the combined company; |
| The risk that the value of the FFN shares will be less than anticipated or less than the value of MidSouth stock; |
| The risk that the earnings per share of the combined company will not be significantly greater than the earnings per shares of MidSouth stock; |
| The risk that MidSouth might be selling too soon after emerging from the Great Recession as compared to the risk of waiting too long to identify a strategic partner, acquirer, or target; |
| The anticipated costs of the perceived and anticipated increases in regulations and regulatory burdens which, on a stand-alone basis, are expected to be greater per dollar of assets as compared to less per dollar of assets on a combined basis; |
| The risk that the liquidity of FFN stock will not be greater than the liquidity of MidSouth stock after the merger, which is an important goal of the MidSouth board of directors; |
| The fact that MidSouths Financial Advisor, Sterne Agee, is being compensated for its efforts in negotiating the present proposed business combination and is being compensated for providing a fairness opinion to MidSouths board of directors, which is attached to this joint proxy statement/prospectus as Appendix C ; |
| The risks described under the section of this joint proxy statement/prospectus above entitled RISK FACTORS RELATING TO THE MERGER, including the risk that the proposed transaction would not be completed; |
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| The limitations imposed in the merger agreement on MidSouths business and operations in the merger agreement; |
| The fact that the merger agreement provides for a fixed Exchange Ratio and that the value of the consideration to be received in the merger by the MidSouth shareholders depends on the value of the FFN common stock at the effective time of the merger and that there can be no assurances that future results, including results expected or considered in the factors listed above would be achieved; |
| The possibility that the pendency of the merger might deter potentially desirable new personnel; |
| The possibility that the customers and communities that MidSouth serves might not react positively to the announcement of the merger or the impact of the completed merger; |
| The possibility that the merger might not be completed and the effect of the resulting public announcement of termination of the merger agreement on MidSouths stock price and its operating results, particularly in light of the expenses related to the transaction; and |
| The belief, which cannot be validated pre-merger, that a combination with FFN would allow MidSouth shareholders to participate in a combined company that would have improved and further accelerated future prospects than MidSouth could achieve either on a stand-alone basis or through a combination with other potential merger partners, with greater market penetration and more diversified customer bases and revenue sources. |
The foregoing discussion of the factors considered by the MidSouth board of directors is not intended to be exhaustive, but, rather, includes some of the material factors considered by the MidSouth board of directors. In reaching its decision to adopt the merger agreement and approve the other transactions contemplated by the merger agreement, the MidSouth board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The MidSouth board of directors considered all these factors as a whole, and overall considered them to be favorable to, and to support, its determination. In considering the factors described above, individual members of the MidSouth board of directors may have given different weights to different factors. It should be noted that this explanation of the MidSouth board of directors reasoning and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed under the heading CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS above.
The MidSouth board of directors determined that the merger, the merger agreement and the transactions contemplated by the merger agreement are in the best interests of MidSouth and its shareholders.
For the reasons set forth above, the MidSouth board of directors has adopted the merger agreement unanimously, has believes that it is in the best interests of MidSouth and its shareholders, and recommends that its shareholders vote FOR this proposal.
Opinion of MidSouth Banks Financial Advisor
On September 16, 2013, the MidSouth board of directors retained Sterne Agee to act as financial adviser to MidSouth regarding a potential merger transaction with FSB, a bank wholly owned by FFN. As part of the engagement, Sterne Agee was asked to assess the fairness, from a financial point of view, of the exchange ratio to MidSouth. Sterne Agee, a nationally recognized investment banking firm with offices throughout the United States, has substantial experience in transactions similar to the merger. As part of its investment banking business, Sterne Agee is continually engaged in the valuation of banking businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, competitive biddings, secondary distributions of listed and unlisted securities, private placements and valuations for corporate and other purposes. As specialists in the securities of banking companies, Sterne Agee has experience in, and knowledge of, the valuation of banking enterprises. Other than with respect to the proposed merger, Sterne Agee has not been engaged to provide services to MidSouth during the past two years.
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As part of Sterne Agees engagement, a representative attended the meeting of MidSouths board of directors held on November 20, 2013, during which MidSouths board of directors evaluated the proposed merger. At this meeting, Sterne Agee reviewed the financial aspects of the proposed transaction and rendered an opinion that, as of such date, the exchange ratio with FFN in the merger was fair, from a financial point of view, to MidSouth. MidSouths board of directors approved the merger agreement at this meeting.
The full text of Sterne Agees written opinion is attached as Appendix C to this joint proxy statement/prospectus and is incorporated herein by reference. MidSouths stockholders are urged to read the opinion in its entirety for a description of the procedures followed, assumptions made, matters considered, and qualifications and limitations on the review undertaken by Sterne Agee. The description of the opinion set forth herein is qualified in its entirety by reference to the full text of such opinion.
Sterne Agees opinion speaks only as of the date of the opinion. The opinion is directed to MidSouths board of directors and addresses only the fairness, from a financial point of view, of the exchange ratio in the merger. It does not address the underlying business decision to proceed with the merger and does not constitute a recommendation to any shareholder as to how the shareholder should vote or act with respect to any matter relating to the merger.
In rendering its opinion, Sterne Agee, among other things:
| Reviewed the merger agreement dated November 21, 2013; |
| Reviewed certain publicly-available financial and business information of MidSouth, FFN and their affiliates which it deemed to be relevant; |
| Reviewed certain information, including financial forecasts, relating to the business, earnings, cash flow, assets, liabilities, liquidity and prospects of MidSouth and FFN; |
| Reviewed materials detailing the merger prepared by MidSouth, FFN and their affiliates and by their legal and accounting advisors; |
| Conducted conversations with members of senior management and representatives of both MidSouth and FFN regarding the matters described in the clauses above, as well as their respective businesses and prospects before and after giving effect to the merger; |
| Compared certain financial metrics of MidSouth, FFN and other selected depository institutions that it deemed to be relevant; |
| Compared certain historical and projected financial information for MidSouth and FFN relative to the Exchange Ratio and their shareholders ownership in the combined company; |
| Reviewed the valuation for the FFN shares and MidSouth shares and compared them with those of certain publicly traded depository institutions that it deemed to be relevant; |
| Analyzed the imputed valuation of the FFN shares and the MidSouth shares based on certain publicly traded depository institutions that it deemed to be relevant and the financial forecasts of both FFN and MidSouth; |
| Analyzed the terms of the merger and the Exchange Ratio relative to selected prior mergers and acquisitions involving a depository institution as the selling entity; |
| Analyzed the Exchange Ratio offered relative to MidSouths tangible book value, last twelve months earnings and core deposits as of September 30, 2013; |
| Analyzed the impact of the merger on certain balance sheet, income statement and capital ratios of MidSouth and FFN; |
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| Analyzed the impact of the merger on MidSouths and FFNs estimated stand-alone earnings per share and tangible book value per share for the projected fiscal years ending December 31, 2014, 2015, 2016, 2017 and 2018; and |
| Reviewed the overall environment for depository institutions in the United States and Middle Tennessee. |
In addition, Sterne Agee conducted such other financial studies, analyses and investigations and took into account such other matters as it deemed appropriate for purposes of its opinion, including its assessment of general economic, market and monetary conditions.
Sterne Agee, in conducting its review and arriving at its opinion, relied upon the accuracy and completeness of all of the financial and other information provided to it or otherwise publicly available. Sterne Agee did not independently verify the accuracy or completeness of any such information or assume any responsibility for such verification or accuracy. Sterne Agee relied upon the management of MidSouth and FFN as to the reasonableness and achievability of the financial and operating forecasts and projections (and the assumptions and basis therefore) provided to Sterne Agee. Sterne Agee assumed that such forecasts and projections reflect the best currently available estimates and judgments of such managements and that such forecasts and projections will be realized in the amounts and in the time periods currently estimated by such managements. Sterne Agee did not make or obtain any evaluation or appraisal of the property of MidSouth or FFN, nor did it examine any individual credit files.
The projections furnished to Sterne Agee and used by it in certain of its analyses were prepared by MidSouths and FFNs senior management teams. MidSouth and FFN do not publicly disclose internal management projections of the type provided to Sterne Agee in connection with its review of the merger. As a result, such projections were not prepared with a view towards public disclosure. The projections were based on numerous variables and assumptions, which are inherently uncertain, including factors related to general economic and competitive conditions. Accordingly, actual results could vary significantly from those set forth in the projections.
For purposes of rendering its opinion, Sterne Agee assumed that, in all respects material to its analyses:
| the merger will be completed substantially in accordance with the terms set forth in the merger agreement with no additional payments or adjustments to the merger consideration; |
| the representations and warranties of each party in the merger agreement and in all related documents and instruments referred to in the merger agreement are true and correct; |
| each party to the merger agreement and all related documents will perform all of the covenants and agreements required to be performed by such party under such documents; |
| all conditions to the completion of the merger will be satisfied without any waiver; and |
| in the course of obtaining the necessary regulatory, contractual, or other consents or approvals for the merger, no restrictions, including any divestiture requirements, termination or other payments or amendments or modifications, will be imposed that will have a material adverse effect on the future results of operations or financial condition of the combined entity or the contemplated benefits of the merger, including the cost savings and related expenses expected to result from the merger. |
Sterne Agee further assumed that the merger will be accounted for as a purchase transaction under generally accepted accounting principles, and that the merger will qualify as a tax-free reorganization for United States federal income tax purposes. Sterne Agees opinion is not an expression of an opinion as to the price at which shares of MidSouth stock will trade following the announcement of the merger or the actual value of the shares of common stock of the combined company when issued pursuant to the merger, or the price at which the shares of common stock of the combined company will trade following the completion of the merger.
In performing its analyses, Sterne Agee made numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, which are beyond the control of
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Sterne Agee, MidSouth and FFN. Any estimates contained in the analyses performed by Sterne Agee are not necessarily indicative of actual values or future results, which may be significantly more or less favorable than suggested by these analyses. Additionally, estimates of the value of businesses or securities do not purport to be appraisals or to reflect the prices at which such businesses or securities might actually be sold. Accordingly, these analyses and estimates are inherently subject to substantial uncertainty. In addition, the Sterne Agee opinion was among several factors taken into consideration by the MidSouth board of directors in making its determination to approve the merger agreement and the merger. Consequently, the analyses described below should not be viewed as determinative of the decision of the MidSouth board of directors with respect to the fairness of the consideration.
The following is a summary of the material analyses presented by Sterne Agee to the MidSouth board of directors on November 20, 2013, in connection with its fairness opinion. The summary is not a complete description of the analyses underlying the Sterne Agee opinion or the presentation made by Sterne Agee to the MidSouth board of directors, but summarizes the material analyses performed and presented in connection with such opinion. The preparation of a fairness opinion is a complex analytic process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances. In arriving at its opinion, Sterne Agee did not attribute any particular weight to any analysis or factor that it considered, but rather made qualitative judgments as to the significance and relevance of each analysis and factor. The financial analyses summarized below include information presented in tabular format. The tables alone do not constitute a complete description of the financial analyses. Accordingly, Sterne Agee believes that its analyses and the summary of its analyses must be considered as a whole and that selecting portions of its analyses and factors or focusing on the information presented below in tabular format, without considering all analyses and factors or the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of the process underlying its analyses and opinion.
Summary of Proposal . Pursuant to the terms of the merger agreement, upon the merger, each outstanding share of MidSouth stock, par value $1.00 shall be cancelled, shall cease to exist and shall no longer be outstanding and shall be converted into the right to receive 0.425926 shares of FFNs common stock, no par value.
Contribution Analysis . Sterne Agee compared certain historical and projected financial information for MidSouth and FFN relative to the Exchange Ratio and their shareholders ownership in the combined company. Based on the analysis, MidSouths imputed ownership ranged from 18.4% to 37.8% and the implied exchange ratio ranged from 0.1822 to 0.4747. The analysis is illustrated below:
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Contribution (%) | ||||||||||||||||||||
Franklin
Financial |
MidSouth |
Implied Exchange
Ratio (x) |
Premium /(Discount) to
Merger Agreement (%) |
|||||||||||||||||
Balance Sheet |
||||||||||||||||||||
Gross Loans |
71.4 | % | 28.6 | % | 0.3198 | (24.9 | ) | |||||||||||||
Total Assets |
71.6 | % | 28.4 | % | 0.3166 | (25.7 | ) | |||||||||||||
Deposits |
69.3 | % | 30.7 | % | 0.3507 | (17.7 | ) | |||||||||||||
Tangible Common Equity - Stated |
65.9 | % | 34.1 | % | 0.4068 | (4.5 | ) | |||||||||||||
Tangible Common Equity - Adjusted 9/30/13 (1) |
62.2 | % | 37.8 | % | 0.4747 | 11.4 | ||||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Income Statement |
||||||||||||||||||||
YTD Net Income (2) |
67.5 | % | 32.5 | % | 0.3803 | (10.7 | ) | |||||||||||||
Projected Net Income 2013 (2) |
72.5 | % | 27.5 | % | 0.3039 | (28.6 | ) | |||||||||||||
Projected Net Income 2014 |
81.6 | % | 18.4 | % | 0.1822 | (57.2 | ) | |||||||||||||
Projected Net Income 2015 |
79.2 | % | 20.8 | % | 0.2114 | (50.4 | ) | |||||||||||||
Projected Net Income 2016 |
77.3 | % | 22.7 | % | 0.2346 | (44.9 | ) | |||||||||||||
Projected Net Income 2017 |
77.0 | % | 23.0 | % | 0.2405 | (43.5 | ) | |||||||||||||
Projected Net Income 2018 |
75.1 | % | 24.9 | % | 0.2657 | (37.6 | ) | |||||||||||||
FY 2014 - 2018 Average Net Income |
77.6 | % | 22.4 | % | 0.2326 | (45.4 | ) | |||||||||||||
|
|
|
|
|
|
|
|
|||||||||||||
Pro Forma |
0.4259 | 0.0 | ||||||||||||||||||
Pro Forma Ownership - Basic (3) |
63.9 | % | 36.1 | % | High | 0.4747 | 11.4 | |||||||||||||
Pro Forma Ownership - Fully Diluted (4) |
64.9 | % | 35.1 | % | Low | 0.1822 | (57.2 | ) | ||||||||||||
Pro Forma Board of Directors |
70.0 | % | 30.0 | % | Mean | 0.3104 | (27.1 | ) | ||||||||||||
Median | 0.3103 | (27.2 | ) |
Note: Dollars in millions; Financial data as of September 30, 2013
(1) | Assumes the reversal of MidSouths DTA valuation allowance of $6.3 million and remaining net proceeds of $2.4 million from Franklin Financials private placement |
(2) | Assumes 0% effective tax rate for MidSouth in FY2013 |
(3) | Based on common shares outstanding at closing |
(4) | Assumes the treasury stock method for each institutions dilutive instruments |
Data Source: SNL Financial, Management estimates
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Per Share Valuation. Sterne Agee reviewed the valuation for the FFN shares and MidSouth shares and compared them with those of certain publicly traded depository institutions that it deemed to be relevant:
Selected nationwide banks listed on major exchanges with $500 million - $1 billion in assets, NPAs / Assets < 3%, and LTM Core ROAA > 0.50%;
Ticker | Company | |
BYLK |
Baylake Corp. | |
HBCP |
Home Bancorp, Inc. | |
UNTY |
Unity Bancorp, Inc. | |
SMPL |
Simplicity Bancorp, Inc. | |
SFST |
Southern First Bancshares, Inc. | |
SMBC |
Southern Missouri Bancorp, Inc. | |
EVBN |
Evans Bancorp, Inc. | |
BERK |
Berkshire Bancorp Inc. | |
AUBN |
Auburn National Bancorporation, Inc. | |
ONFC |
Oneida Financial Corp. | |
LARK |
Landmark Bancorp, Inc. | |
FCCO |
First Community Corporation | |
SBFG |
SB Financial Group, Inc. | |
AMRB |
American River Bankshares | |
FCLF |
First Clover Leaf Financial Corp. | |
BKJ |
Bancorp of New Jersey, Inc. | |
IROQ |
IF Bancorp, Inc. |
Market Valuation for FFNs Public Peers and Imputed FFN Valuation
Price / Tangible Book
Value |
Price / LTM Diluted EPS | |||||||||||||||
Puplic Peer
Multiple (%) |
Implied
Valuation (1) ($) |
Puplic Peer
Multiple (x) |
Implied
($) |
|||||||||||||
High |
145.4 | 17.98 | 28.0 | 33.92 | ||||||||||||
Mean |
111.0 | 13.73 | 14.7 | 17.85 | ||||||||||||
Median |
106.8 | 13.20 | 14.3 | 17.37 | ||||||||||||
Low |
77.6 | 9.60 | 7.1 | 8.58 |
(1) | Based on Franklin Financials estimated financial results at the assumed closing date of March 31, 2014 |
Note: Market data as of November 18, 2013
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Selected public Tennessee Banks with $100 million - $500 million in assets, NPAs / Assets < 4%
Ticker | Company | |
TRUX |
Truxton Corporation | |
AFCB |
Athens Bancshares Corporation | |
CUBN |
Commerce Union Bancshares, Inc. | |
UNTN |
United Tennessee Bankshares, Inc. | |
SBKT |
Sumner Bank & Trust | |
SCYT |
Security Bancorp, Inc. | |
CNLA |
Community National Bank of the Lakeway Area |
Market Valuation for MidSouths Public Peers and Imputed MidSouth Valuation
Price / Tangible Book Value | Price / LTM Diluted EPS | |||||||||||||||||||||||
Public
Peer Multiple (%) |
Reported
Implied Valuation (1) ($) |
DTA Reversal
Implied Valuation (1)(2) ($) |
Puplic Peer
Multiple (x) |
Reported
Implied Valuation (1) ($) |
DTA Reversal
Implied Valuation (1)(2) ($) |
|||||||||||||||||||
High |
136.3 | 5.97 | 7.32 | 18.4 | 5.09 | 3.31 | ||||||||||||||||||
Mean |
88.2 | 3.87 | 4.74 | 12.9 | 3.57 | 2.32 | ||||||||||||||||||
Median |
85.8 | 3.76 | 4.61 | 12.0 | 3.32 | 2.16 | ||||||||||||||||||
Low |
39.1 | 1.71 | 2.10 | 6.7 | 1.86 | 1.21 |
(1) | Based on MidSouths estimated financial results at the assumed closing date of March 31, 2014 |
(2) | MidSouths LTM EPS assumes an effective tax rate of 35% assuming the reversal of the DTA valuation allowance |
Note: Market data as of November 18, 2013
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Trading Comparable Imputed Valuation. Sterne Agee analyzed the imputed per share valuation for both FFN and MidSouth based on certain publicly traded depository institutions that it deemed to be relevant and the financial forecasts of both institutions. Based on the analysis, the implied exchange ratio ranged from 0.1243 to 0.3490. The analysis is illustrated below:
Franklin Financial (1) | MidSouth Bank (2) |
Implied Exchange Ratio(x) |
% Difference | |||||||||||||||||||||||
Peer Median | Implied Price | Peer Median | Implied Price | MidSouth/Franklin | to 0.425926x | |||||||||||||||||||||
P/TBV - Stated (%) |
106.8 | $ | 13.20 | 85.8 | $ | 3.76 | 0.2846x | (33.2 | ) | |||||||||||||||||
P/TBV - DTA Reversal (%) |
106.8 | $ | 13.20 | 85.8 | $ | 4.61 | 0.3490x | (18.1 | ) | |||||||||||||||||
P/LTM EPS - Stated (x) |
14.3 | $ | 17.37 | 12.0 | $ | 3.32 | 0.1913x | (55.1 | ) | |||||||||||||||||
P/LTM EPS - DTA Reversal (x) (3) |
14.3 | $ | 17.37 | 12.0 | $ | 2.16 | 0.1243x | (70.8 | ) | |||||||||||||||||
High | 0.3490x | (18.1 | ) | |||||||||||||||||||||||
Mean | 0.2373x | (44.3 | ) | |||||||||||||||||||||||
Median | 0.2380x | (44.1 | ) | |||||||||||||||||||||||
Low | 0.1243x | (70.8 | ) |
Note: Market data as of November 18, 2013
(1) | Based on Franklin Financials estimated financial results at the assumed closing date of March 31, 2014 |
(2) | Based on MidSouths financial results as of or for the twelve months ended September 30, 2013 |
(3) | MidSouths LTM EPS assumes an effective tax rate of 35% assuming the reversal of the DTA valuation allowance |
Data Source: SNL Financial
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Comparable Transaction Analysis. Sterne Agee reviewed publicly available information related to three groups of precedent transactions involving a depository institution as a selling entity:
(1) | Selected nationwide transactions in 2013 greater than $10 million in deal value involving sellers with total assets of $100 - $500 million and NPAs / Assets < 5.0% |
Buyer |
Target |
|
Name | Name | |
ESSA Bancorp Inc. |
Franklin Security Bancorp Inc | |
Horizon Bancorp |
SCB Bancorp Inc. | |
Home Bancorp Inc. |
Britton & Koontz Capital Corp. | |
LCNB Corp. |
Colonial Banc Corp. | |
MVB Financial Corp |
Capital Funding Bancorp LLC | |
Heritage Oaks Bancorp |
Carpenter Cmnty Bancfund-A LP | |
Bridge Bancorp Inc. |
Modern Capital Holdings LLC | |
New Century Bancorp Inc. |
Select Bancorp Inc. | |
Cardinal Financial Corp. |
United Financial Banking Co. | |
Community & Southern Hldgs Inc |
Verity Capital Group Inc. | |
Independent Bk Group Inc. |
Live Oak Financial Corp. | |
1st Constitution Bancorp |
Rumson-Fair Haven BT&C | |
First Community Corp. |
Savannah River Financial Corp. | |
HomeStreet Inc. |
Fortune Bank | |
HomeStreet Inc. |
YNB Financial Services Corp. | |
German American Bancorp Inc. |
United Commerce Bancorp | |
Independent Bk Group Inc. |
Collin Bank | |
First Bank |
Heritage Community Bk | |
Peoples Bancorp Inc. |
Ohio Commerce Bank | |
Croghan Bancshares Inc. |
Indebancorp | |
Guernsey Bancorp Inc. |
Ohio State Bancshares Inc. | |
Wilshire Bancorp Inc. |
BankAsiana | |
Haven Bancorp MHC |
Hilltop Community Bancorp Inc. | |
BNC Bancorp |
Randolph Bank & Trust Company | |
Commerce Bancshares Inc. |
Summit Bancshares Inc. | |
Independent Bank Corp. |
Mayflower Bancorp Inc. | |
CrossFirst Holdings LLC |
Tulsa National Bcshs Inc. | |
HomeTrust Bancshares Inc. |
BankGreenville Financial Corp. | |
Sterling Financial Corp. |
Commerce National Bk | |
CBTCO Bancorp |
Bradley Bancorp | |
New Hampshire Thrift Bncshrs |
Central Financial Corp. | |
Glacier Bancorp Inc. |
North Cascades Bancshares Inc. | |
CNB Financial Corp. |
FC Banc Corp. | |
Heritage Financial Corp. |
Valley Community Bcshs Inc | |
Pacific Premier Bancorp |
San Diego Trust Bank | |
SI Financial Group Inc. |
Newport Bancorp Inc. |
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(2) | Selected Southeast transactions in 2013 greater than $10 million in deal value involving sellers with total assets of $100$500 million and NPAs / Assets < 5.0% |
Buyer |
Target |
|||
Name | Name | State | ||
Home Bancorp Inc. | Britton & Koontz Capital Corp. | MS | ||
New Century Bancorp Inc. | Select Bancorp Inc. | NC | ||
Cardinal Financial Corp. | United Financial Banking Co. | VA | ||
Community & Southern Hldgs Inc | Verity Capital Group Inc. | GA | ||
First Community Corp. | Savannah River Financial Corp. | GA | ||
BNC Bancorp | Randolph Bank & Trust Company | NC | ||
HomeTrust Bancshares Inc. | BankGreenville Financial Corp. | SC |
(3) | Selected nationwide transactions since 2012 involving targets with assets of $150 - $800 million, TE/TA between 10-20%, and NPAs / Assets < 5.0% |
Buyer |
Target |
|
Name | Name | |
ESSA Bancorp Inc. | Franklin Security Bancorp Inc | |
Horizon Bancorp | SCB Bancorp Inc. | |
Home Bancorp Inc. | Britton & Koontz Capital Corp. | |
New Century Bancorp Inc. | Select Bancorp Inc. | |
Community & Southern Hldgs Inc | Verity Capital Group Inc. | |
First Community Corp. | Savannah River Financial Corp. | |
CenterState Banks | Gulfstream Bancshares Inc. | |
Independent Bk Group Inc. | Collin Bank | |
Wilshire Bancorp Inc. | Saehan Bancorp | |
Wilshire Bancorp Inc. | BankAsiana | |
Haven Bancorp MHC | Hilltop Community Bancorp Inc. | |
CrossFirst Holdings LLC | Tulsa National Bcshs Inc. | |
Sterling Financial Corp. | Commerce National Bk | |
CBFH Inc. | VB Texas Inc. | |
Glacier Bancorp Inc. | North Cascades Bancshares Inc. | |
Heritage Financial Corp. | Valley Community Bcshs Inc | |
Pacific Premier Bancorp | San Diego Trust Bank | |
SI Financial Group Inc. | Newport Bancorp Inc. | |
Southern BancShares (NC) | Heritage Bancshares Inc. | |
QCR Holdings Inc. | Community National Bancorp. | |
First Financial Bankshares | OSB Financial Services Inc. | |
Lakeland Bancorp | Somerset Hills Bancorp | |
TF Financial Corp. | Roebling Financial Corp. | |
Pacific Premier Bancorp | First Associations Bank | |
Bank of the Ozarks Inc. | Genala Banc Inc. | |
American Bancorp. Inc. | Osage Bancshares Inc. | |
FVNB Corp. | Capitol Bankshares Inc. | |
PacWest Bancorp | American Perspective Bank | |
SKBHC Holdings LLC | Security Business Bancorp | |
Commerce Bancshares Corp. | Mercantile Capital Corp | |
First Community Bancshares Inc | Peoples Bank of Virginia | |
CapStar Bank | American Security B&TC | |
Grandpoint Capital Inc. | California Community Bank |
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Transaction multiples for the merger were calculated based on an offer price of $5.75 per share for MidSouth. For each precedent transaction, Sterne Agee derived and compared, among other things, the implied deal value paid for the acquired company to:
| tangible book value (stated and including the reversal of the DTA) of MidSouth based on the financial statements of MidSouth available prior to the announcement of the acquisition; |
| the last twelve months net income based on the financial statements of MidSouth available prior to the announcement of the acquisition; and |
| tangible equity premium (stated and including the reversal of the DTA) to core deposits (total deposits less time deposits greater than $100,000) based on the financial statements of MidSouth available prior to the announcement of the acquisition. |
The results of the analyses are set forth in the following table:
Fixed Exchange Ratio:
Price Per Share
(1)
:
|
0.425926x
$5.75 $37.8 |
Precedent Transactions | ||||||||||||||||||||||||||||||||||||||||||
MidSouth | Nationwide (6) | Southeast (7) |
Highly-
capitalized (8) |
|||||||||||||||||||||||||||||||||||||||||
Transaction Multiples: |
Value (3) | Low | Median | High | Low | Median | High | Low | Median | High | ||||||||||||||||||||||||||||||||||
P / TBV - Stated | $ | 4.38 | 131.3 | % | 40.6 | % | 128.9 | % | 196.4 | % | 61.4 | % | 112.7 | % | 196.4 | % | 60.0 | % | 124.4 | % | 194.4 | % | ||||||||||||||||||||||
P / TBV - DTA Reversal | $ | 5.37 | 107.1 | % | 40.6 | % | 128.9 | % | 196.4 | % | 61.4 | % | 112.7 | % | 196.4 | % | 60.0 | % | 124.4 | % | 194.4 | % | ||||||||||||||||||||||
P / LTM EPS (4) | $ | 0.18 | 31.2 | x | 10.0 | x | 18.8 | x | 29.0 | x | 14.4 | x | 21.0 | x | 27.6 | x | 10.0 | x | 17.1 | x | 29.0 | x | ||||||||||||||||||||||
Core Deposit Premium - Stated (5) | $ | 31.01 | 5.0 | % | 0.7 | % | 4.4 | % | 11.4 | % | 3.4 | % | 5.0 | % | 10.6 | % | 0.3 | % | 4.6 | % | 11.4 | % | ||||||||||||||||||||||
Core Deposit Premium - DTA Reversal (5) | $ | 31.01 | 1.7 | % | 0.7 | % | 4.4 | % | 11.4 | % | 3.4 | % | 5.0 | % | 10.6 | % | 0.3 | % | 4.6 | % | 11.4 | % |
Note: Dollars in millions, except per share data |
(1) | Assumes a per share valuation for Franklin Financial of $13.50 |
(2) | Based on 6,391,707 common shares outstanding (including preferred shares convertible into common), 237,792 warrants with an estimated strike price of $4.15 (based on December 31, 2013 TBV) and 326,300 options with a weighted average exercise price of $3.65 |
(3) | Financial data as of September 30, 2013 |
(4) | For comparison purposes, institutions with effective tax rates less than 20% were adjusted to 35%; excludes deals with P/LTM EPS > 30.0x. MidSouths LTM EPS of $0.18 based on 35% tax rate |
(5) | Assumes time deposits > $100,000 are non-core deposits. As of September 30, 2013, MidSouth reported $34.4 million in non-core deposits |
(6) | Nationwide transactions in 2013 greater than $10 million in deal value involving sellers with total assets of $100 - $500 million and NPAs / Assets < 5.0% |
(7) | Southeastern transactions in 2013 greater than $10 million in deal value involving sellers with total assets of $100 - $500 million and NPAs / Assets < 5.0% |
(8) | Nationwide transactions since 2012 involving targets with assets of $150 - $800 million, TE/TA between 10-20%, and NPAs / Assets< 5.0% |
Data | Source: SNL Financial; Company Documents |
No company or transaction used as a comparison in the above analysis is identical to FFN, MidSouth or the merger. Accordingly, an analysis of these results is not mathematical. Rather, it involves complex considerations and judgments concerning differences in financial and operating characteristics of the companies.
Discounted Cash Flow Analysis.
MidSouth
Sterne Agee estimated the present value of all shares of MidSouth stock based on MidSouths estimated future earnings stream beginning in fourth quarter of 2013. In performing this analysis, Sterne Agee used MidSouths management guidance for fiscal years 2013 2018 to derive projected after-tax cash flows. In
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determining cash flows available to stockholders, Sterne Agee assumed that MidSouth would maintain a tangible common equity/tangible asset ratio of 8.00% and would retain sufficient earnings to maintain that level. Any earnings in excess of what would need to be retained represented dividendable cash flows for MidSouth. The analysis assumed discount rates ranging from 18.0% to 22.0% and terminal multiples ranging from 13.0 times to 15.0 times fiscal year 2018 forecasted earnings. This resulted in a standalone discounted cash flow analysis range of value of MidSouth from $5.31 to $6.52 per share.
FFN
Sterne Agee estimated the present value of all shares of FFN common stock based on FFNs estimated future earnings stream beginning in fourth quarter 2013. In performing this analysis, Sterne Agee used FFNs management guidance for fiscal years 2013 2018 to derive projected after-tax cash flows. In determining cash flows available to stockholders, Sterne Agee assumed that FFN would maintain a tangible common equity/tangible asset ratio of 8.00% and would retain sufficient earnings to maintain that level. Any earnings in excess of what would need to be retained represented dividendable cash flows for MidSouth. The analysis assumed discount rates ranging from 18.0% to 22.0% and terminal multiples ranging from 13.0 times to 15.0 times fiscal year 2018 forecasted earnings. This resulted in a standalone discounted cash flow analysis range of value of FFN from $12.10 to $17.01 per share.
Exchange Ratio Analysis
Terminal EPS Multiple | ||||||||||||
13.0x | 14.0x | 15.0x | ||||||||||
MidSouth |
$ | 5.61 | $ | 5.88 | $ | 6.14 | ||||||
Franklin Financial |
$ | 13.33 | $ | 14.39 | $ | 15.45 | ||||||
Implied Exchange Ratio |
0.4209 | x | 0.4085 | x | 0.3978 | x | ||||||
Premium / (Discount) to Transaction Exchange Ratio |
(1.2 | %) | (4.1 | %) | (6.6 | %) | ||||||
Implied Exchange Ratio - Based on NPV |
Premium / (Discount)
to 0.425926x |
|||||||||||
Franklin Max, MidSouth Min |
0.3632 | x | (14.7 | %) | ||||||||
Franklin Median, MidSouth Median |
0.4085 | x | (4.1 | %) | ||||||||
Franklin Min, MidSouth Max |
0.4610 | x | 8.2 | % |
Sterne Agee analyzed the implied exchange ratio at a 20% discount rate and at terminal multiples ranging from 13.0 times to 15.0 times fiscal year 2018 forecasted earnings.
Sterne Agee stated that the discounted cash flow present value analysis is a widely used valuation methodology, but noted that it relies on numerous assumptions, including asset and earnings growth rates, terminal values, and discount rates. The analysis did not purport to be indicative of the actual values or expected values of either institution.
Financial Impact Analysis . Sterne Agee performed pro forma merger analyses that combined projected income statement and balance sheet information of MidSouth and FFN. Assumptions regarding the accounting treatment, acquisition adjustments and cost savings were used to calculate the financial impact that the merger would have on certain projected financial results of MidSouth. In the course of this analysis, Sterne Agee used earnings estimates for MidSouth and FFN for 2013 - 2018 as provided by the management of both institutions. This analysis indicated that the merger is expected to be accretive to MidSouths estimated earnings per share in 2014 - 2018. The analysis also indicated that the merger is expected to be initially dilutive to tangible book value per share for MidSouth and become accretive in 2015 and that the pro forma entity would maintain well capitalized capital ratios. For all of the above analyses, the actual results achieved by FFN following the merger will vary from the projected results, and the variations may be material.
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Other Analyses . Sterne Agee reviewed the relative financial performance of MidSouth and FFN to a variety of relevant industry peer groups. Sterne Agee also reviewed earnings estimates, balance sheet composition and other financial data for MidSouth and FFN.
Relationships
Sterne Agee acted as MidSouths financial advisor in connection with the merger and will receive a fee for its services a portion of which is contingent upon the successful completion of the merger. Additionally, MidSouth has also agreed to reimburse Sterne Agee for reasonable out-of-pocket expenses and disbursements incurred in connection with its retention and to indemnify it against certain liabilities, including liabilities under the federal securities laws.
In the ordinary course of its business as a broker-dealer, Sterne Agee may, from time to time, purchase securities from and sell securities to MidSouth and FFN or their respective affiliates.
Interests of Certain FFN Executive Officers and Directors in the Merger
Based on FFNs analysis, neither FFNs management nor its board of directors has any financial or other interests in the merger that are in addition to or different from their interests as FFN shareholders generally.
Interests of Certain MidSouth Executive Officers and Directors in the Merger
All of the members of MidSouths executive three-member management team and three of the members of MidSouths board of directors have financial and other interests in the merger that are in addition to, or different from, their interests as MidSouth shareholders generally. MidSouths board of directors was aware of these interests and considered them, among other matters, in approving and adopting the merger agreement.
Employment Relationships. It is expected that immediately after completion of the merger, the current executive officers of MidSouth will be employed by FSB and that they will sign employment contracts, retention bonus agreements, and non-competition, non-disclosure, and non-solicitation agreements. These include Lee M. Moss, Chairman and CEO, Dallas G. Caudle, Jr., President and COO, Kevin D. Busbey, Executive Vice President and CFO, and D. Edwin Jernigan, Jr., a member of MidSouths senior management. The forms of employment and other contracts to be signed by MidSouth executives and senior management, as applicable, will become effective at the closing of the merger and are described below. It is also expected that many, if not all, MidSouth employees will continue to be employed by FSB after the merger. Many non-executive officers and employees will be offered retention bonus agreements or comparable agreements.
Under the proposed employment contracts for MidSouths executive officers, the officers will receive salaries and they will be able to participate in all FFN-FSB employee benefit plans and in FFNs omnibus equity incentive plan. (Presently the MidSouth stock option plan has terminated and no further awards under that plan are possible. The completion of the merger will vest Mr. Busbeys unvested 9,000 options and all other unvested options will vest at that time automatically as well.) Currently, MidSouth officers do not have employment contracts but they do participate in, and have in the past participated in, MidSouths benefit and equity incentive plan. The MidSouth executive signing an employment contract will be employed for two years (which period renews daily) and will be entitled to receive two times his normal annual salary if he is terminated without cause, or if he resigns for good reason, or if there is a change in control (as these terms are defined in the agreement). An executives initial base salary can be increased but not decreased and he may not be demoted in title or duties. Each of them will be banned from competing with FFN or FSB in any of the markets in which they are conducting business at the time of termination or resignation for two years after employment ends.
The dollar amounts of the MidSouth executives compensation after the merger had been discussed before the merger agreement was signed but these amounts were only formally agreed after such signing. As proposed, Chairman Moss will receive an initial base annual salary of $240,000 and a retention bonus of $62,700. As proposed, President Caudle will receive an initial annual base salary of $200,000 and a retention bonus of
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$53,535. As proposed, Executive Vice President Busbey will receive an initial annual salary of $140,000 and a retention bonus of $36,000. Finally, as proposed, Mr. Jernigan will receive a retention bonus of $450,000 and an incentive stock option award for options valued at $50,000, which vests one-fifth each year over a five-year period. Other than with respect to Mr. Jernigan, each executives retention bonus vests one-third each year over a three-year period. Mr. Jernigans retention bonus vests one-fifth each year over a five-year period. Retention bonus payments are to be made annually, commencing on the first anniversary of the agreement, with the bonus to be paid 20% in cash and 80% in FFN stock. The executive must be actively employed on each such anniversary date to qualify for the retention bonus payment.
Security Ownership of MidSouth Directors and Executive Officers. As of , 2014, the record date for determining those MidSouth shareholders entitled to vote their shares at the special meeting, there were 3,871,893 shares of MidSouth common stock and 1,259,907 shares of MidSouth preferred stock outstanding and entitled to vote. Approximately 24.91% of those voting shares were owned and entitled to be voted by MidSouth directors and executive officers and their affiliates. It is expected that all of these shares will be voted in favor of the merger. Spence Limited, LP, MidSouths largest single shareholder, with record ownership of 7.71% of the outstanding voting shares of all classes as of the record date is expected to vote in favor of the merger. See MidSouth Stock Ownership of Management and Certain Beneficial Owners below.
Indemnification; Directors and Officers Insurance. FFN and FSB have agreed to indemnify and hold harmless each present and former director, officer and employee of MidSouth and its subsidiaries following completion of the merger. This indemnification covers liability and expenses arising out of matters existing or occurring at or prior to the completion of the merger to the fullest extent such persons would have been indemnified as directors, officers or employees of MidSouth or any of its subsidiaries under existing indemnification agreements and/or applicable law. This indemnification extends to liability arising out of the transactions contemplated by the merger agreement. FFN and FSB also have agreed that to maintain a policy of directors and officers liability insurance coverage for the benefit of MidSouths directors and officers for five years following completion of the merger. Presently, MidSouth also has various insurance policies and charter and bylaw provisions providing indemnification comparable to that proposed by FFN and FSB.
Director Fees. The three MidSouth board members who are expected to be elected to the FFN and FSB boards of directors upon completion of the merger will receive director fees of $3,000 per year, payable quarterly. Director fees are paid to all directors, including employees who are directors. At MidSouth, all directors receive a $250 monthly retainer and are paid $250 for each meeting attended. Non-employee members of MidSouths audit and executive committees each receive a $250 fee for each meeting attended. Board and committee fees are paid monthly.
Directors of MidSouth, FFN and FSB Following the Merger. At the effective time of the merger, FFNs and FSBs boards of directors will be expanded to add three members of the current MidSouth board to their respective boards of directors. These members are expected to be Jimmy E. Allen, Lee M. Moss, and Matthias B. Murfree, III. As members of the FFN and FSB board of directors, the new directors who are not employees of FFN and FSB can be expected to receive $3,000 per year for service as a director payable quarterly. In addition, these non-employee directors also may receive equity awards under FFNs omnibus equity incentive plan.
FFN is registered as a bank holding company under the Bank Holding Company Act of 1956, as amended, and supervised and regulated by the FRB. FSB and MidSouth are both state chartered member banks and are supervised by the FRB and the TDFI. Set forth below is a brief summary of certain regulatory issues. Additional information relating to the supervision and regulation of FFN is included below. See Supervision and Regulation.
Federal Reserve Regulatory Approval. The merger is subject to prior approval by the FRB pursuant to Section 9 of the Federal Reserve Act. FSB and MidSouth have filed the required applications and notification with the FRB for approval of the merger. The FRB approved the merger on January 28, 2014. The parties may not consummate the merger until after the termination of a waiting period. The waiting period starts the day the FRB approves the merger and notifies the United States Department of Justice and ends 30 days later, except the waiting period may be reduced to 15 days upon consent of the United States Attorney General. The waiting period to consummate the merger was reduced to 15 days. During that time, the United States Department of Justice may challenge the merger on antitrust grounds. The FRB is prohibited from approving any transaction under the applicable statutes that:
| would result in a monopoly; |
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| would be in furtherance of any combination or conspiracy to monopolize or attempt to monopolize the business of banking in any part of the United States; or |
| may have the effect in any part of the United States of substantially lessening competition, tending to create a monopoly or otherwise resulting in a restraint of trade, unless the FRB finds that the public interest created by the probable effect of the transaction in meeting the convenience and needs of the communities to be served clearly outweighs the anticompetitive effects of the proposed merger. |
In addition, the FRB considers the financial and managerial resources of the companies and their subsidiary banks and the convenience and needs of the communities to be served. Consideration of financial resources generally focuses on capital adequacy, which is discussed below, and consideration of managerial resources includes consideration of the competence, experience and integrity of the officers, directors and principal shareholders of the companies and their subsidiary banks.
The analysis of convenience and needs issues includes the parties performance under the Community Reinvestment Act of 1977, as amended. Under the Community Reinvestment Act, the FRB must take into account the record of performance of each of FSB and MidSouth and their respective subsidiaries in meeting the credit needs of the entire community, including the low- and moderate-income neighborhoods in which they operate. Furthermore, applicable federal law provides for the publication of notice and public comment on applications filed with the FRB. The FRB frequently receives comments and protests from community groups and others and may, in its discretion, choose to hold public hearings on the application. Both FSB and MidSouth have a satisfactory rating under the Community Reinvestment Act.
State Regulatory Approval. The Tennessee Banking Act requires submission of an application to and approval from the TDFI for certain acquisitions of state banks by Tennessee banking corporations such as FSB. The TDFI also must take into consideration the financial and managerial resources and future prospects of the banks concerned. The TDFI approved the merger on , 2014.
Additional Federal and State Regulatory Considerations. FFN, FSB and MidSouth are subject to other federal and state laws and regulations relating to the following areas as summarized below:
| Restrictions on the Payment of Dividends: FFN is a legal entity separate and distinct from its banking and other subsidiaries, but depends principally on dividends from its subsidiary depository institution for cash flow to pay any dividends to its shareholders. There are statutory and regulatory limitations on the payment of dividends by FSB to FFN, as well as by FFN to its shareholders. FSB and MidSouth are subject to dividend restrictions imposed by the applicable state and federal regulators. The payment of dividends by FFN and MidSouth also may be affected or limited by other factors, such as the requirement to maintain adequate capital above state or federal regulatory guidelines. |
| Capital Adequacy: FFN, FSB and MidSouth are required by state and federal regulators to comply with certain capital adequacy standards related to risk exposure and the leverage position of financial institutions. Any bank or savings institution that fails to meet its capital guidelines may be subject to a variety of enforcement remedies and certain other restrictions on its business. As of September 30, 2013, FFN, FSB and MidSouth were in compliance with all such capital adequacy standards. |
| Support of Subsidiary Institutions: Under FRB policy, FFN is expected to act as a source of financial strength for, and commit its resources to support FSB, even in times when FFN might not be inclined to provide such support. |
| Prompt Corrective Action: Federal banking regulators are required to audit FSB and MidSouth to determine whether they are adequately capitalized. If a banking institution is deemed by regulators to be insufficiently capitalized, the regulators are required to take certain actions designed to improve the capitalization of the financial institution. |
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| Non-Banking Activities: The Bank Holding Company Act also prohibits, subject to certain exceptions, a bank holding company from engaging in or acquiring direct or indirect control of more than 5% of the voting stock of any company engaged in non-banking activities. An exception to this prohibition is for activities expressly found by the FRB to be so closely related to banking or managing or controlling banks as to be a proper incident thereto or financial in nature. |
| Out-of-State Acquisitions: A bank holding company and its subsidiaries also are prohibited from acquiring any voting shares of, or interest in, any banks located outside of the state in which the operations of the bank holding companys subsidiaries are located, unless the acquisition is specifically authorized by the statutes of the state in which the target is located. |
| Anti-Tying: A bank holding company and its subsidiaries are prohibited from engaging in certain tie-in arrangements in connection with the extension of credit or provision of any property or service. Thus, an affiliate of a bank holding company may not extend credit, lease, sell property, or furnish any services or fix or vary the consideration for these on the condition that (i) the customer must obtain or provide some additional credit, property or services from or to its bank holding company or subsidiaries thereof or (ii) the customer may not obtain some other credit, property, or services from a competitor, except to the extent reasonable conditions are imposed to assure the soundness of the credit extended. |
| Other Requirements: Banks also are required to file annual reports and such additional information as the banking regulations require. Banks are subject to certain restrictions on loan amounts, interest rates, insider loans to officers, directors and principal shareholders, transactions with affiliates and many other matters. Strict compliance at all times with state and federal banking laws will be required. |
In addition to the approvals listed above, additional notices with self-regulatory organizations may be required to be given in connection with the acquisition of MidSouths insurance/securities broker-dealer/registered investment advisor/trust divisions.
Future Regulatory Considerations. Federal legislation, including proposals to revise the bank regulatory system further and to limit or expand the investments that a depository institution may make with insured funds, is from time to time introduced in Congress. The bank examiners will examine banks periodically for compliance with various regulatory requirements. Such examinations, however, are for the protection of the federal deposit insurance funds and for depositors and generally not for the protection of investors and shareholders.
We cannot guarantee you that the regulatory approvals described above will be given without undue delay or the imposition by a regulatory authority of a condition that would materially and adversely impact the financial or economic benefits of the merger on FFN, MidSouth or any of their banking or nonbanking subsidiaries.
Officers of the Combined Corporation
Name |
Office in Franklin
Synergy Bank |
Office in Franklin Financial
Network, Inc. |
||
Sally E. Bowers |
Executive Vice President, Chief Mortgage
Officer |
None | ||
Joseph H. Bowman |
Executive Vice President, Chief Lending
Officer |
None | ||
Kevin D. Busbey |
Executive Vice President, Chief Financial
Officer |
None | ||
Dallas G. Caudle, Jr. |
Executive Vice President, Rutherford
County Community President |
None | ||
Kevin A. Herrington |
Executive Vice President, Chief Operating
Officer |
None | ||
Richard E. Herrington |
Chief Executive Officer, Director |
President, Chief Executive
Officer and Chairman of the Board |
||
Ashley P. Hill, III |
Executive Vice President, Chief Banking
Officer |
None | ||
D. Edwin Jernigan, Jr. |
Senior Vice President, Investments | None | ||
J. Myers Jones, III |
Executive Vice President, Chief Credit
Officer |
None | ||
Sally P. Kimble |
None |
Executive Vice President, Chief
Financial Officer |
||
David J. McDaniel |
Executive Vice President, Chief Retail
Officer, Williamson County Community President |
None | ||
Lee M. Moss |
President, Director | Director | ||
Jere D. Pewitt |
Executive Vice President, Senior Lending
Officer |
None | ||
Aimee M. Punessen |
Senior Vice President, Marketing & Public
Relations Officer |
None |
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For the backgrounds and biographical information about each of these officers, see MANAGEMENT OF FFN and INFORMATION ABOUT MIDSOUTH - Executive Officers of MidSouth.
Board of Directors of the Combined Corporation
Name |
Office in Franklin
Synergy Bank |
Office in Franklin Financial
Network, Inc. |
||
Jimmy E. Allen |
Director | Director | ||
Henry W. Brockman |
Director | Director | ||
James W. Cross, IV |
Director | Director | ||
Richard E. Herrington |
Chief Executive Officer, Director |
President, Chief Executive
Officer and Chairman of the Board |
||
David H. Kemp |
Director | Director | ||
Lee M. Moss |
President, Director | Director | ||
Matthias B. Murfree, III |
Director | Director | ||
Paul M. Pratt, Jr. |
Director | Director | ||
Melody J. Smiley |
Director | Director | ||
Pamela J. Stephens |
Director | Director |
Jimmy E. Allen
Mr. Allen, age 73, is a director of MidSouth Bank and serves on the Banks Loan/Compliance/Executive Committee. Mr. Allen is the President of Venture Express, Inc.; Creative Transportation; Allens Cartage Company, LaVergne, Tennessee; and co-owner of Center Hill Marina & Yacht Club. He attended Austin Peay State University, Clarksville, Tennessee and the University of Tennessee, Nashville. Mr. Allen formerly served as a member of the board of directors of Rutherford Bank & Trust, Murfreesboro and Independent Bank, Gallatin,
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Tennessee. He served as past chairman of Tennessee Trucking Association and Nashville Motor Freight. His past accomplishments include being selected as Nashville Business Journals Executive of the Year. He is a supporter of Vanderbilt Childrens Hospital and Ronald McDonald House.
Henry W. Brockman, Jr.
Mr. Brockman, age 64, has been a member of the board of directors of FFN and FSB since both entities inception. Mr. Brockman has 30 years of financial services and business experience, all of which is in Middle or West Tennessee. Mr. Brockman began his financial services career in 1979 as a securities broker with J.C. Bradford in Nashville, Tennessee. He rose through the ranks to become Managing Partner in charge of Institutional Sales and Trading before retiring in 2000. Mr. Brockman held Series 7, Series 63, and Series 8 licenses from 1979 through 2005. Mr. Brockman also held a listed seat at the NYSE from 1998 through 2000. From 2002 to 2004, Mr. Brockman was Manager of Institutional Sales for Morgan Keegan in Memphis, Tennessee. Mr. Brockman is a 1972 graduate of the University of Tennessee, Knoxville with a Bachelor of Science degree. In 1974, Mr. Brockman received a Masters of Library Science from the Peabody College (now Vanderbilt University) in Nashville, Tennessee.
James W. Cross, IV
Mr. Cross, age 50, has been a director of FFN and FSB since July of 2009. Mr. Cross is President of Century Construction Company, Inc., a General Contractor in Franklin, Tennessee. Mr. Cross also serves as President of Land Contractors, Inc., a site development firm also based in Franklin, Tennessee. Mr. Cross has more than 20 years of business experience in Tennessee, beginning his career at Century Construction Company, Inc., a firm started by his father, James W. Cross, III in 1958. Mr. Cross served on the Board of Directors of Franklin Financial Corporation, parent of Franklin National Bank and the Tennessee affiliate Board of Directors of Fifth Third Bank in Franklin, Tennessee. Mr. Cross is a member of the board of directors of Williamson Medical Center, Battle Ground Academy, and the Williamson County Library Foundation. He previously served on the board of directors of Franklin Tomorrow, Leadership Franklin, Youth Leadership Franklin, the Franklin-Williamson County Chamber of Commerce and the Williamson County Library.
Richard E. Herrington
Mr. Herrington, age 66, is the President and CEO of FFN and FSB. He is a veteran Williamson County, Tennessee banker with 40 years of banking experience. In his early career, he served a stint with banks in Florida and South Carolina. He moved to Middle Tennessee in 1977, and began working at First American Bank in Nashville in financial management working up to Senior Vice President. Later, he was a bank consultant with Price Waterhouse prior to establishing his own community bank data processing and consulting firm. In 1989, Mr. Herrington co-founded Franklin Financial Corporation (Franklin National Bank) where he served as President and CEO until 2002. Late in 2002, he was recruited by the Board of Civitas BankGroup (then Cumberland Bancorp) and became the President and CEO and board member of the five-bank holding company, charged with engineering a turn-around of the troubled banking organization. In accomplishing this, he assembled a five-member executive management team that executed a successful four-year remediation plan.
Dr. David H. Kemp
Dr. Kemp, age 55, has been a member of the board of directors of FFN and FSB since these entities inception. Dr. Kemp has more than 24 years of healthcare experience in Franklin, Tennessee. Dr. Kemp opened Kemp Orthodontics in Franklin in 1986 and has owned and operated the business since that time. Dr. Kemp serves on the Advisory Council of 3M Unitek in Monrovia, California, advising on new products and improvements to existing orthodontic products. From 1993 to April 2007, Dr. Kemp served as an Advisory Board member to First Tennessee Bank in Franklin, supporting Regional Presidents in the accomplishment of their responsibilities by assisting in contacts with community leaders. Dr. Kemp holds a Bachelor of Science from the University of Tennessee, Martin, Tennessee. Dr. Kemp is also a graduate of The University of Tennessee, Center for the Health Sciences, Memphis, Tennessee and holds both a Doctor of Dental Science and a Postdoctoral Master of Science in Orthodontics.
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Lee M. Moss
Mr. Moss, age 62, is the Chairman and Chief Executive Officer of MidSouth Bank. He serves on the Banks Loan and Executive Committee (Executive Chairman), Trust Committee (Chairman), Executive Leadership Committee (Chairman) and the Asset/Liability Committee. Mr. Moss graduated from Hillwood High School in Nashville in 1969, where he lettered in all sports and served as President of his senior class. In 1973, Mr. Moss graduated from the University of Tennessee with a Bachelor of Science degree, majoring in Banking. He served as Treasurer of Phi Gamma Delta fraternity, served on the Vol Corps, and on the Undergraduate Alumni Council.
Mr. Moss worked for Valley Fidelity Bank in Knoxville for one year after graduating from the University of Tennessee, and then worked 28 years with Third National Bank/SunTrust Bank in Nashville. He served in numerous leadership capacities in both the Retail and Commercial divisions of the bank, and in January 1995, he moved to Murfreesboro where he served as Regional President, overseeing Rutherford and Wilson Counties. He graduated from the National Commercial Lending School in 1978 and the Graduate School of Banking of the South in 1983. In January 2003, Moss served as one of the organizers for MidSouth Bank.
Mr. Moss has been very active in each of the communities in which he has lived. In Nashville, he served as President of The University of Tennessee (Davidson County) Alumni Chapter, UT National Alumni Board, President of the Downtown Optimist Club, and Secretary of the American Cancer Society. He also served as a TSSAA high school basketball official for 26 years. Since moving to Murfreesboro, Mr. Moss currently serves as Chairman of Middle Tennessee Medical Centers Board, member of Saint Thomas Health Services Board in Nashville, MTSU Wesley Foundation Board Member, Business Education Partnership Board, and as a Sunday School teacher and Administrative board member for First United Methodist Church. He previously served as a member of the College of Business Administration Advisory Council at MTSU, Chairman of the Rutherford County Chamber of Commerce, Chairman of the United Way, President of the Discovery Center, National President of Phi Gamma Delta fraternity, President of the American Heart Association, and Trustee of the MTSU Foundation. Moss is a graduate of Leadership Rutherford and Leadership Middle Tennessee. Mr. Moss was the recipient of MTSUs 2005 Champion of Free Enterprise, the Chamber of Commerces 2006 Business Person of the Year, and as the YMCAs 2012 Humanitarian of the Year.
Matthias B. Murfree, III
Mr. Murfree, age 69, is a director of MidSouth Bank and serves on the Banks Loan/Compliance/Executive Committee. Mr. Murfree is a senior partner of Murfree & Murfree, PLLC, Attorneys at Law in Murfreesboro, Tennessee. He received his Bachelor of Arts degree and his J. D. from Vanderbilt University. He presently serves on the board of The Christy-Houston Foundation, Inc. and was formerly chairman of its board. Mr. Murfree is on the board of directors of Middle Tennessee Medical Center and formerly served as its chairman. He is a former member of the board of directors of Saint Thomas Health Services. Mr. Murfree is a member of the Rutherford County Chamber of Commerce, formerly serving as its board chairman. He was selected as the 2002 Rutherford County Chamber of Commerce Business Legend. His past community involvements include serving as acting County Executive for Rutherford County; and president of Rutherford County Bar Association.
Paul M. Pratt, Jr.
Mr. Pratt, age 50, has been a member of the board of directors of FFN and FSB since those entities inception. Mr. Pratt has 28 years of financial services and business experience in Franklin, Tennessee. In 1983, Mr. Pratt began his financial services career with Full Service Insurance, an independent insurance broker in Franklin, Tennessee. He rose through the ranks to become President, the position he holds today. Mr. Pratt is a 1983 graduate of Columbia State Community College with an Associate Degree in Engineering. Mr. Pratt is a Past President of the Board of Directors of the Franklin Noon Rotary Club and a former board member of Williamson Medical Foundation, a non-profit dedicated to philanthropic community gifts to Williamson Medical Center in Franklin, Tennessee. Mr. Pratt also served on the Williamson County Advisory Board of Cumberland Bank until April 2007.
Melody J. Smiley
Ms. Smiley, age 61, has been a director of FFN and FSB since May of 2010. Ms. Smiley founded the first woman-owned CPA firm in Franklin, Tennessees Historic Downtown business district in July of 1986 after working as a staff accountant for one of Nashvilles most respected business owners and CPA firms, and serving as comptroller for a local food service company. She served on the Board of Directors of Franklin National Bank for
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14 years and Fifth Third Bank for 5 years. Ms. Smiley is a member and past president of the Franklin Breakfast Rotary Club. She currently serves on the board of directors for Waves in Franklin, Tennessee, an organization dedicated to enabling individuals with intellectual and developmental disabilities to progress toward their full potential. She is a past president of the board of directors of Franklin Family YMCA and has served on the board of directors of United Way of Williamson County, Franklin Tomorrow, the Williamson County-Franklin Chamber of Commerce, The March of Dimes, Williamson County CASA, and Historic Carnton Plantation. Ms. Smiley is a graduate of Leadership Franklin. She is a past chairperson of the Small Business Development Division of the Williamson County-Franklin Chamber of Commerce.
Pamela J. Stephens
Ms. Stephens, age 55, has been a director of FFN and FSB since July of 2009. Ms. Stephens is a Funeral Director and part owner of Williamson Memorial Funeral Home and Gardens in Franklin, Tennessee and Spring Hill Memorial Park and Funeral Home in Spring Hill, Tennessee. From 2003 to 2007, Ms. Stephens served on the board of directors of Cumberland Bank in Franklin, Tennessee. Ms. Stephens is a Paul Harris Fellow where she served as charter president of the Rotary Club of Spring Hill. She is a past president of the Cemetery Association of Tennessee and past president of the Southern Cemetery and Funeral Association, a member of the board of directors of the Franklin-Williamson County Chamber of Commerce and board of director of the Tennessee Funeral Directors Association.
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DISSENTERS RIGHTS FOR MIDSOUTH SHAREHOLDERS
Introductory Information
General . Dissenters rights with respect to MidSouths common and preferred stock are governed by the Tennessee Banking Act, which incorporates the dissenters rights provisions of the Tennessee Business Corporation Act. Shareholders of MidSouth have the right to dissent from the merger and to obtain payment of the fair value of their shares (as specified in the statute) in the event MidSouth completes the merger. Strict compliance with the dissent procedures is mandatory . Subject to the terms of the merger agreement, MidSouth could elect to terminate the merger agreement even if it is approved by MidSouths shareholders, thus cancelling dissenters rights.
The term fair value means the value of a share of MidSouths outstanding common or preferred stock immediately before the completion (Effective Date) of the merger, taking into account all relevant factors, but excluding any appreciation or depreciation in anticipation of the merger.
If you contemplate exercising your right to dissent, we urge you to read carefully the provisions of Chapter 23 of the Tennessee Business Corporation Act, and the summary of those provisions, which are attached to this joint proxy statement/prospectus as Appendix B . A more detailed discussion of the provisions of the statute is included there. The discussion describes the steps that you must take if you want to exercise your right to dissent. You should read both the summary and the full text of the law. We cannot give you legal advice. To completely understand this law, you may want, and we encourage you, to consult with your legal advisor. If you wish to dissent, do not send in a signed proxy unless you mark your proxy to vote against the merger or you will lose the right to dissent .
Address for Notices . Send or deliver any written notice or demand required concerning your exercise of dissenters rights to Lee M. Moss, Chairman, MidSouth Bank, One East College Street, Murfreesboro, Tennessee 37130.
Act Carefully ! We urge you to act carefully. We cannot and do not accept the risk of late or undelivered notices or demands. You may call MidSouth at (615) 278-7100 and ask for Lee Moss or Kevin Busbey to receive confirmation that your notice or demand has been received. If your notices or demands are not timely received by MidSouth, then you will not be entitled to exercise your dissenters rights. MidSouths shareholders bear the risk of non-delivery and of untimely delivery.
If you intend to dissent, or if you think that dissenting might be in your best interests, you should read Appendix B carefully.
Summary of Chapter 23 of the Tennessee Business Corporation Act Dissenters Rights
The following is a summary of Chapter 23 of the Tennessee Business Corporation Act and the procedures that a shareholder must follow to dissent from the proposed merger and to perfect his, her or its dissenters rights and receive cash rather than shares of FFN common stock if the merger agreement is approved and the merger is completed. This summary is qualified in its entirety by reference to Chapter 23, which is reprinted in full as part of this Appendix B to this joint proxy statement/prospectus. Appendix B should be reviewed carefully by any shareholder who wishes to perfect his or her dissenters rights. Failure to strictly comply with the procedures set forth in Chapter 23 will, by law, result in the loss of dissenters rights. It may be prudent for a person considering whether to dissent to obtain professional counsel.
If the proposed merger of MidSouth with and into FSB is completed, any shareholder who has properly perfected his or her statutory dissenters rights in accordance with Chapter 23 has the right to obtain, in cash, payment of the fair value of such shareholders shares of MidSouth common and/or preferred stock. By statute, the fair value is determined immediately prior to the completion of the merger and excludes any appreciation or depreciation in anticipation of the merger.
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To exercise dissenters rights under Chapter 23, a MidSouth shareholder must:
| deliver to MidSouth, before the special meeting, written notice of her, his or its intent to demand payment for her, his or its shares of MidSouths outstanding common and/or preferred stock if the merger is completed; and |
| not vote her, his or its shares in favor of approving and adopting the merger. |
A shareholder of record who fails to satisfy both of these two requirements is not entitled to payment for her, his or its shares of MidSouth common and/or preferred stock under Chapter 23. In addition, any shareholder who returns a signed proxy but fails to provide instructions as to the manner in which such shares are to be voted will be deemed to have voted in favor of approving and adopting the merger and will not be entitled to assert dissenters rights .
A shareholder may assert dissenters rights as to fewer than all the shares registered in her, his or its name only if she, he or it dissents with respect to all shares beneficially owned by any one beneficial shareholder and notifies MidSouth in writing of the name and address of each person on whose behalf she, he or it is asserting dissenters rights. The rights of such a partial dissenter are determined as if the shares as to which he or she dissents and his or her other shares are registered in the names of different MidSouth shareholders.
If the merger is approved and adopted at the MidSouth shareholders meeting, MidSouth must deliver a written dissenters notice (the Dissenters Notice) to all MidSouth shareholders who satisfied the two requirements of Chapter 23 described above. The Dissenters Notice must be sent no later than 10 days after the effective time (the date that the merger is completed) and must:
| State where the demand for payment must be sent and where and when certificates for certificated shares must be deposited; |
| Inform holders of uncertificated shares to what extent transfer of those shares will be restricted after the demand for payment is received; |
| Supply a form for demanding payment that includes the date of the announcement of the proposed merger to the public (November 21, 2013) and requires that the shareholder asserting dissenters rights certify whether or not she, he or it acquired beneficial ownership of such shares prior to said date; |
| Set a date by which MidSouth must receive the demand for payment (which date may not be fewer than one nor more than two months after the Dissenters Notice is delivered); and |
| Be accompanied by a copy of Chapter 23, if not previously provided to such shareholder (set forth in Appendix B to this document). |
A MidSouth shareholder of record on the record date who receives the Dissenters Notice must demand payment, certify that she, he or it acquired beneficial ownership of such shares prior to the date set forth in the Dissenters Notice and deposit her, his or its certificates in accordance with the terms of the Dissenters Notice. MidSouth may elect to withhold payment required by Chapter 23 from the dissenting shareholder unless such shareholder was the beneficial owner of the shares prior to the public announcement of the proposed merger on or about November 21, 2013. A dissenting shareholder will retain all other rights of a MidSouth shareholder until those rights are canceled or modified by the completion of the merger. A shareholder of record who does not demand payment or deposit her, his or its share certificates where required, each by the date set in the Dissenters Notice, is not entitled to payment for his, her or its shares under Chapter 23 or otherwise as a result of the merger. A demand for payment may not be withdrawn unless consented to by MidSouth.
MidSouth may restrict the transfer of any uncertificated shares from the date the demand for their payment is received until the merger is completed. A MidSouth shareholder for whom dissenters rights are asserted as to uncertificated shares of MidSouth common and/or preferred stock retains all other rights of a MidSouth shareholder until these rights are canceled or modified by the completion of the merger.
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At the effective time or upon receipt of a demand for payment, whichever is later, MidSouth must offer to pay each dissenting shareholder who strictly and fully complied with Chapter 23 the amount that MidSouth estimates to be the fair value of her, his or its shares, plus accrued interest from the effective time. The offer of payment must be accompanied by:
| Certain recent MidSouth financial statements; |
| MidSouths estimate of the fair value of the shares and interest due; |
| An explanation of how the interest was calculated; |
| A statement of the dissenters right to demand payment under T.C.A. Section 48-23-209; and |
| A copy of Chapter 23, if not previously provided to such shareholder. |
If the merger is not completed within two (2) months after the date set for demanding payment and depositing share certificates, MidSouth must return the deposited certificates and release the transfer restrictions imposed on the uncertificated shares. If, after such return or release, the merger is completed, MidSouth must send a new Dissenters Notice and repeat the payment procedure described above.
If a dissenting MidSouth shareholder is dissatisfied with or rejects MidSouths calculation of fair value, such dissenting shareholder must notify MidSouth in writing of her, his or its own estimate of the fair value of those shares and the interest due, and may demand payment of her, his or its estimate, if:
| She, he or it believes that the amount offered or paid by MidSouth is less than the fair value of her, his or its shares or that the interest due has been calculated incorrectly; |
| MidSouth fails to make payment within two (2) months after the date set forth for demanding payment; or |
| MidSouth, having failed to complete the merger, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within two months after the date set for demanding payment. |
A dissenting shareholder waives her, his or its right to dispute MidSouths calculation of fair value unless she, he or it notifies MidSouth of her, his or its demand in writing within one (1) month after MidSouth makes or offers payment for such persons shares.
If a demand for payment by a MidSouth shareholder remains unsettled, MidSouth must commence a proceeding in the appropriate court, as specified in Chapter 23, within two months after receiving the demand for payment, and petition the court to determine the fair value of the shares and accrued interest. If MidSouth does not commence the proceeding within two months, MidSouth is required to pay each dissenting shareholder whose demand remains unsettled, the amount demanded. MidSouth is required to make all dissenting MidSouth shareholders whose demands remain unsettled parties to the proceeding and to serve a copy of the petition upon each dissenting shareholder. The court may appoint one or more appraisers to receive evidence and to recommend a decision on fair value. Each dissenting shareholder made a party to the proceeding is entitled to judgment for the fair value of such persons shares plus interest to the date of judgment.
In an appraisal proceeding commenced under Chapter 23, the court must determine the costs of the proceeding, including the reasonable compensation and expenses of appraisers appointed by the court. The court will assess these costs against MidSouth, except that the court may assess the costs against all or some of the dissenting shareholders to the extent the court finds they acted arbitrarily, vexatiously, or not in good faith in demanding payment under Chapter 23. The court also may assess the fees and expenses of attorneys and experts for the respective parties against MidSouth if the court finds that MidSouth did not substantially comply with the requirements of Chapter 23, or against either MidSouth or a dissenting shareholder if the court finds that such party acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by Chapter 23.
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If the court finds that the services of the attorneys for any dissenting shareholder were of substantial benefit to other dissenting shareholders similarly situated, and that the fees for those services should not be assessed against MidSouth, the court may award those attorneys reasonable fees out of the amounts awarded the dissenting shareholders who were benefitted.
The foregoing does not purport to be a complete statement of the provisions of the Tennessee Business Corporation Act relating to statutory dissenters rights and is qualified in its entirety by reference to the dissenters rights provisions, which are reproduced in full in Appendix B to this joint proxy statement/prospectus and which are incorporated herein by reference.
If you intend to dissent, or if you think that dissenting might be in your best interests, you should read Appendix B carefully.
Material United States Federal Income Tax Consequences of the Merger
The following summarizes the anticipated material U.S. federal income tax consequences of the merger generally applicable to U.S. Shareholders (as defined below) of MidSouth stock who hold the common stock as a capital asset within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended (the Code). This summary description deals only with the U.S. federal income tax consequences of the merger. No information is provided regarding the tax consequences of the merger under state, local, gift, estate, foreign or other tax laws. We do not intend it to be a complete description of the U.S. federal income tax consequences of the merger to all MidSouth shareholders in light of their particular circumstances or to MidSouth shareholders subject to special treatment under U.S. federal income tax laws, such as:
| shareholders who are not U.S. persons; |
| entities treated as partnerships for U.S. federal income tax purposes or MidSouth shareholders who hold their shares through entities treated as partnerships for U.S. federal income tax purposes; |
| qualified insurance plans; |
| tax-exempt organizations; |
| qualified retirement plans and individual retirement accounts; |
| brokers or dealers in securities or currencies; |
| traders in securities that elect to use a mark-to-market method of accounting; |
| regulated investment companies; |
| real estate investment trusts; |
| insurance companies, banks, thrifts and other financial institutions; |
| brokers or dealers in securities or currencies; |
| traders in securities that elect to use a mark-to-market method of accounting; |
| persons whose functional currency is not the U.S. dollar; |
| shareholders who received their stock upon the exercise of employee stock options or otherwise acquired their stock as compensation; |
| persons who purchased or sell their shares of MidSouth stock as part of a wash sale; and |
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| shareholders who hold the stock as part of a hedge, straddle or other risk reduction, constructive sale, or conversion transaction, as these terms are used in the Code. |
This discussion is based upon, and subject to, the Code, the Treasury Regulations promulgated under the Code, existing interpretations, administrative rulings and judicial decisions all of which are in effect as of the date of this statement, and all of which are subject to change, possibly with retroactive effect. Any such change could affect the continuing validity of this discussion. Tax laws are complex, and your individual circumstances may affect the tax consequences to you. We urge you to consult a tax advisor regarding the tax consequences of the merger to you.
U.S. Shareholders
For purposes of this discussion, the term U.S. Shareholder means a beneficial owner of MidSouth stock that is:
| a citizen or resident of the U.S.; |
| a corporation (including any entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the U.S. or any State or the District of Columbia; |
| a trust that (i) is subject to both the primary supervision of a court within the U.S. and the control of one or more U.S. persons, or (ii) has a valid election in effect under applicable U.S. treasury regulations to be treated as a U.S. person; or |
| an estate that is subject to U.S. federal income tax on its income regardless of its source. |
If a partnership (including any entity or arrangement, domestic or foreign, that is treated as a partnership for U.S. federal income tax purposes) holds MidSouth stock, the tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Partnerships and partners in such a partnership should consult their tax advisors regarding the tax consequences of the merger to them.
Qualification of the Merger as a Reorganization
FFN, FSB, and MidSouth have structured the merger to qualify as a reorganization within the meaning of Section 368(a) of the Code. Based on the Agreement and Plan of Reorganization and Bank Merger (the merger agreement), the obligation of FFN, FSB, and MidSouth to complete the merger is conditioned upon the receipt of a tax opinion from Baker Donelson to the effect that:
| the merger will constitute a reorganization under Section 368(a) of the Code, and FFN, FSB, and MidSouth will each be a party to the reorganization; |
| no gain or loss will be recognized by FFN, FSB, and MidSouth as a result of the merger; and |
| no gain or loss will be recognized by shareholders of MidSouth who exchange their MidSouth stock for the merger consideration pursuant to the merger (except with respect to the cash consideration and cash received in lieu of a fractional share interest in FFN common stock). |
Tax Consequences of the Merger to FFN, FSB, and MidSouth
Because MidSouth is merging under state law into FSB, a wholly owned subsidiary of FFN, the merger is generally characterized as a forward subsidiary merger or a forward triangular merger. Certain specific requirements in the Code and Treasury Regulations applicable to such a type of merger must be satisfied for the merger to be a tax-free reorganization under Section 368(a) of the Code.
The requirements specific to the merger to qualify as a reorganization under Section 368(a) of the Code are (a) the stock of FFN, which is in control of FSB as its parent corporation, must be used as the merger consideration, (b) substantially all of MidSouths assets must be acquired by FSB, (c) no stock of FSB is used as merger consideration, and (d) other general requirements applicable to all tax-free reorganizations under Section 368(a) of the Code must also be satisfied.
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Pursuant to the merger agreement adopted by MidSouth, FFN, and FSB, MidSouth will merge with and into FSB, a wholly owned, first-tier, subsidiary of FFN, pursuant to the provisions of Tennessee law (T.C.A. § 45-2-1301 et seq.). At the Effective Time of the merger, which is the date the Articles of Merger are filed with the Commissioner of Financial Institutions for the State of Tennessee and then the Tennessee Secretary of State, or such later time and date as FFN, FSB, and MidSouth may agree, each share of MidSouth stock, preferred stock, and warrants will be converted into the right to receive shares of FFN common stock based on an Exchange Ratio agreed to by the parties in the merger agreement. MidSouth options to purchase a share of MidSouth stock will be converted into options to purchase FFN common stock. No stock of FSB will be used in the acquisition of MidSouth. As a result of the merger, substantially all of MidSouths properties will be acquired by FSB, and MidSouths banking business or assets will be continued by or used by FSB in its banking business.
In addition to satisfying the specific requirements imposed on the merger by Section 368(a) of the Code as generally described above, the merger will be undertaken pursuant to a plan of reorganization (merger agreement), is undertaken for reasons germane to the businesses of MidSouth, FFN, and FSB, and there will be a continuity of MidSouths business enterprise or MidSouths business assets will be used in the banking business of FSB. As a result, the merger will be a reorganization under Section 368(a) of the Code as long as the continuity of interest requirement is also satisfied. Continuity of interest requires that in substance a substantial part of the value of the MidSouth common and preferred stock is exchanged for FFN common stock. Under guidelines set forth in the Treasury Regulations, if at least 40 percent of the value of the consideration delivered in exchange for the value of MidSouths aggregate equity, consisting of common and preferred stock, consists of FFN common stock, then the continuity of interest requirement should be satisfied, even if the remaining MidSouth equity is exchanged for cash in lieu of fractional shares or other consideration that is not FFN equity. MidSouth warrants and options to purchase MidSouth stock that are outstanding as of the Effective Time of the merger are not regarded as outstanding MidSouth stock. It is anticipated that at least 40 percent of the value of the common stock and preferred stock in MidSouth (determined as of the day before the date that the merger agreement was executed) will be exchanged for FFN common stock.
Tax Consequences of the Merger to Owners of MidSouth Stock
The following discussion summarizes the material U.S. federal income tax consequences of the merger to U.S. Shareholders. Since FFN is in control of FSB, FFN stock is used as the merger consideration, no stock of FSB will be used as the merger consideration, substantially all of MidSouths assets will be acquired by FSB, and the general requirements in the Code and Treasury Regulations required for a tax-free reorganization will be satisfied, as discussed above, including continuity of interest, Baker Donelson anticipates that it will issue a tax opinion, dated as of the closing date, to the effect that:
| The merger will constitute a reorganization under Section 368(a) of the Code, and FFN, FSB, and MidSouth will each be a party to a reorganization under Section 368(b) of the Code; and |
| No gain or loss will be recognized by FFN, FSB, and MidSouth as a result of the merger. |
Since it is anticipated that the merger will constitute a reorganization under Section 368(a) of the Code, the U.S. federal income tax consequences of the merger to an owner of MidSouth stock that is a U.S. Shareholder generally will depend on whether the U.S. Shareholder exchanges MidSouth stock for FFN common stock or a combination of FFN common stock and cash in lieu of fractional shares of FFN common stock.
| Exchange Solely for FFN Common Stock. No gain or loss will be recognized by U.S. Shareholders upon the exchange of shares of MidSouth stock solely for shares of FFN common stock pursuant to the merger, except in respect of cash received in lieu of the issuance of a fractional share of FFN common stock (as discussed below). |
|
Exchange of Cash in Lieu of Fractional Share. A U.S. Shareholder who receives cash in lieu of the issuance of a fractional share of FFN common stock will generally be treated as having received such |
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fractional share pursuant to the merger and then as having received cash in exchange for such fractional share. Gain or loss generally will be recognized in an amount equal to the difference between the amount of cash received instead of the fractional share and the portion of the U.S. Shareholders aggregate adjusted tax basis of the MidSouth stock shares exchanged in the merger which is allocable to the fractional share of FFN common stock. Such gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss if, as of the effective date of the merger, the holding period for such shares of MidSouth stock is more than one year. |
| Tax Basis of FFN Common Stock Received in the Merger. The aggregate tax basis of the FFN common stock (including a fractional share deemed received and sold for cash as described above) received in the merger will equal the aggregate tax basis of the MidSouth stock surrendered in the exchange. |
| Holding Period of FFN Common Stock Received in the Merger. The holding period for any FFN common stock received in the merger will include the holding period of the MidSouth stock surrendered in the exchange. |
Dissenting Shareholders
If you perfect your dissenters rights with respect to your shares of MidSouth stock, you will generally recognize capital gain or loss equal to the difference between your tax basis in those shares and the amount of cash received in exchange for those shares. The tax consequences of cash received may vary depending upon your individual circumstances. Each holder of MidSouth stock who contemplates exercising statutory dissenters rights should consult its tax adviser as to the possibility that all or a portion of the payment received pursuant to the exercise of such rights will be treated as dividend income.
Backup Withholding and Information Reporting
In general, information reporting requirements may apply to the cash payments made to shareholders of MidSouth stock in connection with the merger, unless an exemption applies. Backup withholding may be imposed on the above payments at a rate of 31% if a U.S. Shareholder (i) fails to provide a taxpayer identification number or appropriate certificates, or (ii) otherwise fails to comply with all applicable requirements of the backup withholding rules.
Any amounts withheld from payments to shareholders of MidSouth stock under the backup withholding rules are not an additional tax and will be allowed as a refund or credit against your applicable U.S. federal income tax liability, provided the required information is furnished to the Internal Revenue Service. Shareholders of MidSouth stock should consult their own tax advisors regarding the application of backup withholding based on their particular circumstances and the availability and procedure for obtaining an exemption from backup withholding.
THE PRECEDING DISCUSSION IS INTENDED ONLY AS A SUMMARY OF THE MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES OF THE MERGER AND DOES NOT PURPORT TO BE A COMPLETE ANALYSIS OR DISCUSSION OF ALL POTENTIAL TAX EFFECTS RELEVANT THERETO. THUS, MIDSOUTH SHAREHOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISERS AS TO THE SPECIFIC TAX CONSEQUENCES TO THEM OF THE MERGER, INCLUDING TAX RETURN REPORTING REQUIREMENTS, THE APPLICABILITY AND EFFECT OF NON-U.S., FEDERAL, STATE, LOCAL, AND OTHER APPLICABLE TAX LAWS, AND THE EFFECT OF ANY PROPOSED CHANGES IN THE TAX LAWS.
Accounting Treatment
The share exchange will be accounted for under the acquisition method of accounting under accounting principles generally accepted in the United States of America. For accounting purposes, the cost of the acquired entity (MidSouth) will be allocated to consolidated tangible and intangible assets and liabilities based on their estimated fair value on the date that the share exchange is completed. Any excess cost will be allocated to goodwill.
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The financial statements of FFN issued after the merger will reflect the results attributable to the acquired operations of the two banks beginning on the date of completion of the share exchange. The unaudited pro forma financial information contained herein has been prepared using the acquisition method of accounting.
Sales of Shares of the Combined Corporation Common Stock Received in the Merger
The shares of FFN common stock to be issued in the merger will be registered under the Securities Act. FFNs common stock is not currently listed or traded on any securities exchange or quotation system. MidSouth shareholders who are not affiliates of FFN may generally freely trade their FFN common stock upon completion of the merger. The term affiliate generally means each person who is an executive officer, director or 10% shareholder of FFN after the merger.
Those shareholders who are deemed to be affiliates of FFN may only sell their FFN common stock as provided by Rule 144 under the Securities Act or as otherwise permitted under the Securities Act. Rule 144 requires the availability of current public information about the issuer, a holding period for shares issued without SEC registration, volume limitations and other restrictions on the manner of sale of the shares.
The following is a summary of the material terms of the merger agreement. This summary does not purport to describe all the terms of the merger agreement and is qualified by reference to the complete merger agreement which is attached as Appendix A to this joint proxy statement/prospectus and incorporated herein by reference. All shareholders of FFN and MidSouth are urged to read the merger agreement carefully and in its entirety.
Under the merger agreement, MidSouth will merge with and into FSB with FSB continuing as the surviving company.
The merger agreement provides that, at the effective time of the merger, each share of MidSouth common stock issued and outstanding immediately prior to the effective time of the merger, will be converted into 0.425926 shares of FFN common stock, and each share of MidSouth preferred stock issued and outstanding immediately prior to the effective time of the merger will be converted into 0.851852 shares of FFN common stock. Each warrant to purchase shares of MidSouth common stock will be converted into that number of shares of FFN common stock equal to (i) $5.75 less the strike price of the warrant at the effective date of the merger (ii) divided by $13.50. Based upon the 3,871,893 shares of MidSouth common stock, 1,259,907 shares of MidSouth preferred stock and warrants and options to purchase 564,092 shares of MidSouth stock outstanding as of September 30, 2013, FFN would issue up to 2,764,338 shares of FFN common stock and grant options to purchase another 138,980 shares of FFN common stock.
Each option to purchase a share of MidSouth stock shall be converted into an option to purchase a share of FFN common stock multiplied by the Exchange Ratio (as defined above); the exercise price will become the exercise price of such option divided by the Exchange Ratio. All of MidSouths stock options will then be cancelled.
In any event, stock options that are intended to be incentive stock options under the Code will be adjusted in the manner prescribed by the Code.
Exchange of Certificates in the Merger
Before the effective time of the merger, FFN will appoint an exchange agent to handle the exchange of MidSouth stock certificates and certificates representing warrants to purchase MidSouth stock (warrant certificates) for shares of FFN common stock and the payment of cash for fractional shares. Promptly after the effective time of the merger, the exchange agent will send a letter of transmittal, which is to be used to exchange MidSouth stock certificates and warrant certificates for shares of FFN common stock, to each former MidSouth
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shareholder who holds one or more MidSouth stock certificates or warrant certificates. The letter of transmittal will contain instructions explaining the procedure for surrendering MidSouth stock certificates or warrant certificates. You should not return certificates with the enclosed proxy card.
MidSouth shareholders who surrender their stock certificates and warrant certificates, together with a properly completed letter of transmittal, will receive shares of FFN common stock into which the shares of MidSouth stock, preferred stock or warrants were converted in the merger. After the effective date of the merger, each certificate that previously represented shares of MidSouth common stock, preferred stock or warrants will only represent the right to receive the shares of FFN common stock (and cash in lieu of fractions thereof) into which those shares of MidSouth common stock or preferred stock or warrants to purchase MidSouth stock have been converted.
If a certificate for MidSouth common stock or preferred stock or warrants has been lost, stolen or destroyed, the exchange agent will issue the consideration properly payable under the merger agreement upon receipt of appropriate evidence as to that loss, theft or destruction, appropriate evidence as to the ownership of that certificate by the claimant, and appropriate and customary indemnification.
FFN shareholders do not need to exchange their stock certificates.
No fractional shares of FFN common stock will be issued in the merger. Instead, the exchange agent will pay each of those shareholders who would have otherwise been entitled to a fractional share of FFN common stock an amount in cash determined by multiplying the fractional share interest by $13.50.
Until MidSouth stock certificates and warrant certificates are surrendered for exchange, any dividends or other distributions declared after the effective time with respect to FFN common stock into which shares of MidSouth stock, preferred stock or warrants may have been converted will accrue but will not be paid. FFN will pay to former MidSouth shareholders any unpaid dividends or other distributions without interest only after they have duly surrendered their MidSouth stock certificates and warrant certificates. After the effective time of the merger, there will be no transfers on the stock transfer books of MidSouth of any shares of MidSouth common or preferred stock or warrants to purchase MidSouth stock. If certificates representing shares of MidSouth common or preferred stock or warrants are presented for transfer after the completion of the merger, they will be cancelled and exchanged for the merger consideration into which the shares of MidSouth common or preferred stock or warrants represented by that certificate have been converted.
The exchange agent will be entitled to deduct and withhold from the merger consideration payable to any MidSouth shareholder the amounts it is required to deduct and withhold under any federal, state, local or foreign tax law. If the exchange agent withholds any amounts, these amounts will be treated for all purposes of the merger as having been paid to the shareholders from whom they were withheld.
The merger will be completed when we file articles of merger with the Secretary of State of the State of Tennessee. However, we may agree to a later time for completion of the merger and specify that time in the articles of merger. While we anticipate that the merger will be completed during the first or second quarter of 2014, completion of the merger could be delayed if there is a delay in obtaining the required regulatory approvals or in satisfying any other conditions to the merger. There can be no assurances as to whether, or when, FSB and MidSouth will obtain the required approvals or complete the merger. If the merger is not completed on or before June 30, 2014, either FFN or MidSouth may terminate the merger agreement, unless the failure to complete the merger by that date is due to the failure of the party seeking to terminate the merger agreement to perform its covenants and agreements in the merger agreement. See Conditions to the Completion of the Merger immediately below.
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Conditions to the Completion of the Merger
Completion of the merger is subject to various conditions. While it is anticipated that all of these conditions will be satisfied, there can be no assurance as to whether or when all of the conditions will be satisfied or, where permissible, waived.
The respective obligations of FFN and MidSouth to complete the merger are subject to the following conditions:
| approval of the merger agreement by MidSouths shareholders; |
| approval of the merger agreement and the issuance of FFN common stock in connection with the merger by FFNs shareholders; |
| receipt of all required regulatory approvals and expiration of all related statutory waiting periods (FRB approved the merger on January 28, 2014, TDFI approved the merger on , 2014); |
| effectiveness of the registration statement, of which this joint proxy statement/prospectus constitutes a part, for the FFN shares to be issued in the merger; |
| absence of any order, injunction or decree of a court or agency of competent jurisdiction which prohibits completion of the merger; |
| the receipt by MidSouth of an opinion of counsel, dated the closing date of the merger, substantially to the effect that the merger will be treated as a reorganization under Section 368(a) of the Code and that no tax gain or loss will be recognized by FFN, MidSouth or MidSouth shareholders (except for any income tax consequences to MidSouth shareholders arising in connection with cash payments for fractional shares); |
| absence of any statute, rule, regulation, order, injunction or decree which prohibits or makes illegal completion of the merger; |
| accuracy of the other partys representations and warranties contained in the merger agreement, except, in the case of most of such representations and warranties, where the failure to be accurate would not be reasonably likely to have a material adverse effect on the party making the representations and warranties (see Representations and Warranties immediately below), and the performance by the other party of its obligations contained in the merger agreement in all material respects; |
| Richard E. Herrington shall continue to be chief executive officer of FSB; |
| Lee M. Moss shall become the president of FSB; and |
| there are no MidSouth regulatory agreements in effect that would have a material adverse effect on FFN or FSB after the merger. |
Representations and Warranties
Each of MidSouth and FFN and FSB has made representations and warranties to the other in the merger agreement as to:
| corporate organization, standing and authority; |
| binding effect of agreement; |
| no breach; |
| capitalization; |
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| financial statements; |
| absence of certain changes; |
| regulatory filings; |
| regulatory compliance; |
| sole agreement to merge or sell; |
| litigation and claims; |
| tax returns; |
| brokers; |
| stock records; |
| contracts; |
| franchises, patents, trademarks and other rights; |
| contracts in full force; |
| environmental matters; |
| certain interests of directors and officers; |
| personal property; |
| real property; |
| loan portfolio; |
| no violations of related party laws; |
| interest rate risk management instruments; |
| insurance; |
| tax treatment as a reorganization; |
| expenses; |
| undisclosed liabilities; |
| state takeover laws. |
Most of the representations and warranties of the parties will be deemed to be true and correct unless the totality of facts, circumstances or events inconsistent with the representations or warranties has had or is reasonably likely to have a material adverse effect on (i) the business, operations, results of operations, financial condition or prospects of the party making the representations and warranties taken as a whole, or (ii) on the ability of the party to consummate the transactions contemplated by the merger agreement. In determining whether a material adverse effect has occurred or is reasonably likely, the parties will disregard any effects resulting from (1) changes in prevailing interest rates, currency exchange rates or other economic or monetary conditions in the United States or elsewhere, (2) changes in United States or foreign securities markets, including changes in price levels or trading volumes, (3) changes or events, after the date of the merger agreement, affecting the financial services industry
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generally and not specifically relating to FFN or MidSouth or their respective subsidiaries, as the case may be, (4) changes, after the date of the merger agreement, in generally accepted accounting principles or regulatory accounting requirements applicable to banks or savings associations and their holding companies generally, (5) changes, after the date of the merger agreement, in laws, rules or regulations of general applicability or interpretations thereof by any governmental entity, (6) actions or omissions of FFN and FSB on the one hand and/or MidSouth on the other taken with the prior written consent of the other or required hereunder, (7) the execution and delivery of the merger agreement or the consummation of the transactions contemplated thereby or the announcement thereof, or (8) any outbreak of major hostilities in which the United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located; and provided further, that no event shall a change in the trading prices of a partys capital stock, by itself, be considered material or constitute a material adverse effect.
Conduct of Business Pending the Merger
Each of the parties has agreed, during the period from the date of the merger agreement to the completion of the merger, to use its best efforts to:
| maintain its Tier 1 capital at a level equal to at least 95% of its Tier 1 capital as of September 30, 2013; |
| take all actions necessary and use its best efforts to obtain any consents, approvals, permits or authorizations which are required to be obtained in order to complete the merger; and |
| take such actions as are otherwise necessary to consummate the merger at the earliest practicable time and without any unnecessary delay. |
In addition, each of FFN and MidSouth has agreed that it will not, and will not permit any of its subsidiaries to, without the prior written consent of the other party:
| make any change to its charter or bylaws or those of its subsidiaries; |
| make any change to its capital stock; issue, sell, purchase or retire any of its capital stock; grant any option, warrant, call or other right to purchase or to convert any obligation into any of its capital stock; issue or sell or agree to issue or sell any other equity security or issue or sell any debt security, subject to certain exceptions; |
| declare or pay any dividend, or authorize or make any redemption, or make or declare any other distribution of its assets; |
| pay, discharge, settle or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction of (i) liabilities reflected or reserved against in, or contemplated by, the most recent financial statements, or (ii) liabilities incurred in the ordinary course of business consistent with past practices since the date of such financial statements; |
| take any actions that would result in a breach in its representations, warranties or covenants; and |
| take any action that would threaten the consummation of the merger. |
MidSouth agrees that it will, unless otherwise approved by FFN, or as otherwise previously agreed or specified in the merger agreement:
| operate in the regular and ordinary course of business and in substantially the same manner as previously conducted; |
| preserve its present business operations; |
| retain its officers and employees; and |
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| preserve its customer relationships. |
MidSouth has agreed that it will not, without the prior written consent of FFN, or as otherwise previously agreed or specified in the merger agreement:
| enter into any new or amend any existing employment agreements, bonus, stock option, ESOP, profit sharing, pension plans, employee plan, retirement, incentive or similar arrangement; |
| take any action that would prevent FFN and FSB from accounting for the merger as a reorganization under Section 368(a) of the Internal Revenue Code; and |
| incur any expenses related to the repair, maintenance or making improvements to the real property owned by MidSouth in excess of $25,000. |
FFN agrees that neither it nor FSB will close a merger, share exchange or other acquisition of a financial institution with deposits insured through the Federal Deposit Insurance Corporation, or any bank holding company registered under the Bank Holding Company Act of 1956, as amended, prior to the closing of the merger, unless: (i) the three members of MidSouths board of directors who will become members of the FFN and FSB boards of directors upon completion of the merger are included in such discussions and are entitled to vote on such other acquisition; and (ii) MidSouth consents to the closing of such other acquisition prior to the closing of the merger.
Reasonable Best Effort to Obtain Required Shareholder Vote
Each of MidSouth and FFN will take all steps necessary to duly call, give notice of, convene and hold a meeting of its respective shareholders to be held as soon as is reasonably practicable after the date on which the registration statement of which this joint proxy statement/prospectus is part becomes effective for the purpose of voting upon, in the case of MidSouth shareholders, the approval of the merger agreement and, in the case of FFN shareholders, the approval of the FFN merger proposal. Each of MidSouth and FFN will, through its respective board of directors, use its reasonable best efforts to obtain the approval of its respective shareholders in respect of the foregoing. Nothing in the merger agreement is intended to relieve the parties of their respective obligations to hold a meeting of their shareholders to obtain the approval required to complete the merger.
No Solicitation of Alternative Transactions
The merger agreement provides, subject to limited exceptions described below, that MidSouth and its subsidiaries will not authorize its directors, officers, employees, agents, investment bankers, financial advisors, attorneys, accountants, or other representatives retained by it or any of its subsidiaries to (1) continue any discussions or negotiations with other parties that may be ongoing, (2) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or encourage any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any acquisition proposal, (3) participate in any discussions or negotiations regarding any acquisition proposal or (4) make or authorize any statement, recommendation or solicitation in support of any acquisition proposal.
For purposes of the merger agreement, the term acquisition proposal means any inquiry, proposal or offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to do any of the foregoing from any person relating to any (1) direct or indirect acquisition or purchase of a business that constitutes a substantial portion of the net revenues, net income or assets of a party or parties or any of their respective subsidiaries, (2) direct or indirect acquisition or purchase of any class of equity securities representing 10% or more of the voting power of a party or parties or any of their respective subsidiaries, (3) tender offer or exchange offer that if consummated would result in any person beneficially owning 10% or more of the voting power of a party or parties or any of their respective subsidiaries, or (4) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving a party or parties or any of their respective subsidiaries, in each case other than the transactions contemplated by the merger agreement.
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The merger agreement permits MidSouth to consider an acquisition proposal that MidSouth may receive. If MidSouth receives an unsolicited bona fide written acquisition proposal after the date of the merger agreement, MidSouth may engage in discussions and negotiations with, or provide nonpublic information to, the person making that acquisition proposal only if:
| the board of directors receives such unsolicited bona fide written acquisition proposal prior to the meeting of its shareholders; |
| the board of directors concludes in good faith that the acquisition proposal constitutes or is reasonably likely to result in a superior proposal as defined below; |
| the board of directors, after consultation with outside legal counsel, reasonably determines in good faith that failure to consider the acquisition proposal would cause it to violate its fiduciary duties under applicable law; |
| MidSouth enters into a confidentiality or nondisclosure agreement having provisions that are no less restrictive to such person than those that are contained in the nondisclosure agreement between FFN and MidSouth; and |
| MidSouth notifies FFN promptly (in no event later than two (2) business days), after receipt of any acquisition proposal or any request for nonpublic information relating to MidSouth or any of its subsidiaries by any person that informs MidSouth that it is considering making, or has made, an acquisition proposal, or any inquiry from any person seeking to have discussions or negotiations with such party relating to a possible acquisition proposal; such notice shall inform FFN of the identity of the person making the acquisition proposal, inquiry or request, the material terms and conditions of any inquiries, proposals or offers, and provide updates to FFN regarding the status and terms of any such proposals, offers, discussions and negotiations on a current basis. |
For purposes of the merger agreement, the term superior proposal means a bona fide written acquisition proposal which the Board of Directors of a party concludes in good faith, after consultation with its financial advisors and legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including any termination payment, and any other expense reimbursement provisions and conditions to consummation), (1) is more favorable to the shareholders of the party from a financial point of view, than the transactions contemplated by the merger agreement and (2) is fully financed or reasonably capable of being fully financed, reasonably likely to receive all required governmental approvals on a timely basis and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of superior proposal, the term acquisition proposal shall have the meaning assigned to such term in the merger agreement except that the reference to 10% or more in the definition of acquisition proposal shall be deemed to be a reference to a majority and acquisition proposal shall only be deemed to refer to a transaction involving such party.
Termination of the Merger Agreement
General. The merger agreement may be terminated at any time prior to completion of the merger, whether before or after the approval of the merger agreement by MidSouth shareholders and approval of the FFN merger proposal by FFN shareholders, in any of the following ways:
| by mutual consent of FFN and MidSouth; |
| by either FFN or MidSouth, if any request or application for a required regulatory approval is denied by the governmental entity which must grant such approval and such denial has become final and non- appealable, or a governmental entity has issued an order, decree, or ruling to permanently prohibit the merger and such prohibition has become final and non-appealable, except that no party may so terminate the merger agreement if the denial is a result of the failure of such party to the merger agreement; |
| by either FFN or MidSouth, if any governmental entity of competent jurisdiction has issued a final non-appealable order enjoining or otherwise prohibiting the merger; |
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| by either FFN or MidSouth, if the merger is not completed on or before June 30, 2014, unless the failure of the closing to occur by this date is due to the failure of the party seeking to terminate the merger agreement to comply with the merger agreement or the failure to close by such date is caused by regulatory, including the Securities and Exchange Commission, or court delays outside the control of the parties; |
| by either FFN or MidSouth, if any approval of the shareholders of FFN or MidSouth required for completion of the merger has not been obtained upon a vote taken at a duly held meeting of shareholders or at any adjournment or postponement thereof provided the party seeking to terminate the merger agreement has complied with the requirements in the merger agreement to call a meeting of shareholders and recommend approval of the merger agreement; |
| by either FFN or MidSouth, if (1) the terminating party is not then in material breach of any representation, warranty, covenant or other agreement contained in the merger agreement and (2) there has been a breach of any of the covenants, agreements, representations or warranties of the other party in the merger agreement, which breach is not cured within 30 days following written notice to the party committing the breach, or which breach, by its nature, cannot be cured prior to the closing date of the merger, and which breach, individually or together with all other breaches, would, if occurring or continuing on the closing date, result in the failure of the condition relating to the performance of obligations or breaches of representations or warranties described under Conditions to the Completion of the Merger above; |
| by either FFN or MidSouth, if (1) the board of directors of the other does not publicly recommend that its shareholders either approve the merger agreement, (2) after recommending that such shareholders approve the merger agreement, such board of directors has withdrawn, modified or amended such recommendation in any manner adverse to the other party, or (3) the other party materially breaches its obligations under the merger by reason of a failure to call a meeting of its shareholders or a failure to prepare and mail to its shareholders this document; or |
| by FFN, if the board of directors of MidSouth authorizes, recommends, proposes or publicly announces its intention to authorize, recommend or propose an acquisition proposal with any person other than FFN. |
Effect of Termination. If the merger agreement is terminated, it will become void and there will be no liability on the part of FFN or MidSouth or their respective officers or directors, except that:
| any termination will be without prejudice to the rights of any party arising out of the willful breach by the other party of any provision of the merger agreement; and |
| designated provisions of the merger agreement, including the payment of fees and expenses, the confidential treatment of information and, if applicable, the termination fee described above, will survive the termination. |
Termination Fees. FFN and MidSouth may each terminate the merger agreement at any time upon the payment of liquidated damages of $1.5 million.
Extension, Waiver and Amendment of the Merger Agreement
Extension and Waiver. At any time prior to the completion of the merger, each of FFN and MidSouth may, to the extent legally allowed:
| extend the time for the performance of any of the obligations or other acts of the other party under the merger agreement; |
| waive any inaccuracies in the other partys representations and warranties contained in the merger agreement; and |
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| waive the other partys compliance with any of its agreements contained in the merger agreement, or waive compliance with any conditions to its obligations to complete the merger. |
Amendment. Subject to compliance with applicable law, FFN and MidSouth may amend the merger agreement at any time before or after approval of the merger agreement by MidSouth and FFN shareholders. However, after any approval of the merger agreement by MidSouth and FFN shareholders, there may not be, without their further approval, any amendment of the merger agreement that reduces the amount or changes the form of the consideration to be delivered to the MidSouth shareholders.
Employee Benefit Plans and Existing Agreements
Employee Benefit Plans. The merger agreement provides that following the effective time of the merger, to the extent permissible under the terms of the FFN and FSB employee benefit plans, the employees of MidSouth and its subsidiaries generally shall be eligible to participate in FFN and FSBs employee benefit plans in which similarly situated employees of FFN or its subsidiaries participate, to the same extent as similarly situated employees of FFN or its subsidiaries. For purposes of determining an employees eligibility to participate in certain plans and entitlement to benefits thereunder, FFN will give full credit for the service a continuing employee had with MidSouth prior to the merger, except that such service shall not be recognized to the extent that such recognition would result in a duplication or increase of benefits. FFN is currently investigating different benefit plan options for the combined company.
The merger agreement provides that each of FFN and MidSouth will pay its own expenses in connection with the transactions contemplated by the merger agreement, except that FFN and MidSouth will share equally the costs and expenses of printing and mailing this joint proxy statement/prospectus to the shareholders of MidSouth and FFN, and all filing and other fees paid to the SEC in connection with the merger and the other transactions contemplated by the merger agreement.
ELECTION OF DIRECTORS
FFNs board of directors proposes that Henry W. Brockman, Jr., James W. Cross, IV, Richard E. Herrington, Dr. David H. Kemp, Paul M. Pratt, Jr., Melody J. Smiley, and Pamela J. Stephens be elected for a term of one year or until their successors are duly elected and qualified. FFNs board of directors has determined that Ms. Smiley and Ms. Stephens are independent under the NASDAQ listing requirements. FFN has no reason to believe that any nominee for director will not agree or be available to serve as a director if elected. However, should any nominee become unavailable or unwilling to serve, the proxies may be voted for a substitute nominee or to allow the vacancy to remain open until filled by FFNs board of directors. The presence of a quorum at the annual meeting, either in person or by written proxy, and the affirmative vote of a plurality of the votes cast at the meeting are necessary to elect a nominee as a director.
FFNs board of directors believes that it is necessary for our directors to possess a variety of background and skills in order to provide a broad voice of experience and leadership. When searching for new candidates, FFNs board of directors considers the evolving needs of our board of directors and searches for candidates that fill any current or anticipated future gap. When considering new directors, FFNs board of directors considers the amount of business management and education of a candidate, industry knowledge, conflicts of interest, integrity and ethics, and commitment to the goal of maximizing shareholder value. FFNs board of directors does not have a policy about diversity, but does seek to provide our board of directors with a depth of experience and differences in viewpoints and skills. In considering candidates for our board of directors, FFNs board of directors considers both the entirety of each candidates credentials and the current and potential future needs of our board of directors. With respect to the nomination of continuing directors for re-election, the individuals contributions to our board of directors are also considered.
FFNs board of directors believes that the combination of the various qualifications, skills, and experiences of the nominees would contribute to an effective and well-functioning board of directors. FFNs board of directors believes that, individually and as a whole, the nominees possess the necessary qualifications to provide effective oversight of the business and quality advice and counsel to FFNs management.
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Nominees for Election
FFNs board of directors has nominated the persons listed below to serve as directors for a one-year term expiring at the annual meeting of stockholders occurring in 2015:
| Henry W. Brockman, Jr. |
| James W. Cross, IV |
| Richard E. Herrington |
| Dr. David H. Kemp |
| Paul M. Pratt, Jr. |
| Melody J. Smiley |
| Pamela J. Stephens |
The ages, background and experience of the nominess for election to FFNs board of directors are set forth under FFN AND MIDSOUTH PROPOSAL NO. 1THE MERGER Board of Directors of the Combined Corporation. The terms of the directors elected at the FFN annual meeting will expire at FFNs 2015 annual meeting of shareholders. Included in each nominees biography is an assessment of the specific qualifications, attributes, skills, and experience of such nominee based on the qualifications described above.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF EACH OF THE DIRECTOR NOMINEES.
The seven nominees receiving the most For votes will be elected. Neither abstentions nor broker non-votes will have any legal effect on whether this proposal is approved.
RATIFICATION OF APPOINTMENT OF INDEPENDENT AUDITOR
FFNs auditors are appointed annually by the board of directors. The decision of the board of directors is based on a review of the qualifications, independence, past performance, and quality controls of the auditor. The decision also takes into account the proposed audit scope, staffing, and approach, including coordination of the external auditors efforts with our internal audit, as well as the estimated audit fees for the coming year. Management considers Crowe Horwath LLP to be well qualified.
FFNs board of directors has appointed Crowe Horwath LLP as our independent auditor for fiscal year 2014, subject to ratification by a majority of the shares represented at the annual meeting. In view of the difficulty and expense involved in changing auditors on short notice, should the shareholders not ratify the selection of Crowe Horwath LLP, it is contemplated that the appointment of Crowe Horwath LLP will be permitted to stand unless the board of directors finds other compelling reasons for making a change. Disapproval by the shareholders will be considered a recommendation that the board of directors select other auditors for the following year.
Representatives of Crowe Horwath LLP are expected to be present at the annual meeting of shareholders and will be given the opportunity to make a statement, if they desire, and to respond to appropriate questions.
Audit and Non-Audit Services
FFNs board of directors is directly responsible for the appointment, compensation, and oversight of its independent auditor. It is the policy of the audit committee of FFNs board of directors to pre-approve all audit and non-audit services provided by its independent registered public accountants. FFNs board of directors has considered whether the provision by Crowe Horwath LLP of services of the varieties described below is compatible with maintaining the independence of Crowe Horwath LLP, and FFNs board of directors believes that such services do not jeopardize the independence of Crowe Horwath LLP.
The table below sets forth the aggregate fees FFN paid to Crowe Horwath LLP for audit and non-audit services provided to FFN in 2013 and 2012.
Fees |
2013 | 2012 | ||||||
Audit Fees |
$ | 57,305 | $ | 59,832 | ||||
Audit-Related Fees |
17,610 | 31,246 | ||||||
Tax Fees |
21,150 | 19,345 | ||||||
All Other Fees |
| | ||||||
Total |
$ | 96,065 | $ | 110,423 | ||||
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In the above table, in accordance with the SECs definitions and rules, audit fees are fees for professional services for the audit of a companys financial statements, for the review of a companys quarterly financial statements, and for services that are normally provided by the accountant in connection with statutory and regulatory filings or engagements; audit-related fees are fees for assurance and related services that are reasonably related to the performance of the audit or review of a companys financial statements; tax fees are fees for tax compliance, tax advice, and tax planning; and all other fees are fees for any services not included in the first three categories.
FFNS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE RATIFICATION OF THE APPOINTMENT OF CROWE HORWATH LLP AS INDEPENDENT AUDITOR.
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AMENDMENT OF 2007 OMNIBUS EQUITY INCENTIVE PLAN
FFNs board of directors recommends the amendment of FFNs 2007 Omnibus Equity Incentive Plan (the Plan) to increase the number of shares of FFNs common stock available for issuance under the Plan from 1,500,000 to 2,000,000. The Board of Directors has determined that this increase in the number of shares available for issuance under the Plan is beneficial to FFN and its shareholders. The Board of Directors believes this increase in the number of shares available for issuance under the Plan is necessary to issue options upon completion of the merger to those individuals who currently hold options to purchase shares of MidSouth stock, as provided for in the merger agreement, and to attract new employees as FFN continues to grow and to have the ability to continue to reward employees with such incentive compensation, and encourage such valued employees to acquire a proprietary interest in FFN and to remain in its employ and service.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE FOR THE AMENDMENT OF FFNS 2007 OMNIBUS EQUITY INCENTIVE PLAN TO INCREASE THE NUMBER OF SHARES OF FFNS COMMON STOCK AVAILABLE FOR ISSUANCE UNDER THE PLAN FROM 1,500,000 TO 2,000,000.
Information regarding FFNs 2007 Omnibus Equity Incentive Plan follows below:
The Plan allows a Committee chosen by the Board of Directors (Committee) to grant incentive stock options (ISOs) within the meaning of the Internal Revenue Code of 1986, as amended (the Code) to key employees and officers of FFN and FSB and non-qualified options (NSOs and, together with the ISOs, the Options) to non-employee directors, incorporators, and others for the purchase of shares. As amended, the Plan will also allow the Committee to grant awards of stock appreciation rights (SARs), restricted stock, and cash to key employees and officers of FFN and Bank and to non-employee directors and incorporators. The purpose of the Plan is to advance the interests of FFN and FSB by stimulating the efforts of key employees, directors, incorporators, and consultants, increasing their desire to continue in their employment with or services to FFN and FSB, assisting FFN and FSB in competing effectively with other enterprises for the services of new employees and directors necessary for the continued improvement of operations, and to attract and retain the best possible personnel for service as employees, officers, directors, and consultants of FFN and FSB. Accordingly, the Plan is designed to promote the interests of FFN and FSB and its shareholders, and, by facilitating stock ownership on the part of such participants, to encourage them to acquire a proprietary interest in FFN and to remain in its employ and service.
Committee Authority
The Committee may at any time terminate, suspend, or amend the Plan, except that the Committee shall not, without the authorization of the holders of a majority of the Stock (as defined in the Plan) voted at a shareholders meeting duly called and held, change any provisions (other than those adjustments for changes in capitalization) which determine (a) the aggregate number of shares for which Options may be granted under the Plan or to any person; (b) the classes of person eligible for Options; or (c) the duration of the Plan. The Committee may postpone any exercise of an Option for such time as the Committee may deem necessary in order to permit FFN (i) to effect, amend, or maintain any necessary registration of the Plan or the shares issuable upon the exercise of an Option under the securities laws of any applicable jurisdiction, (ii) to permit any action to be taken in order to (A) list such stock on a stock exchange if shares are then listed on such exchange or (B) comply with restrictions or regulations incident to the maintenance of a public market for its shares, including any rules or regulations of any stock exchange on which the shares are listed, or (iii) to determine that such shares and the Plan are exempt from such registration or that no action of the kind referred to in (ii) (B) above needs to be taken; and FFN shall not be obligated by virtue of any terms and conditions of any Option Agreement (as defined in the Plan) or any provision of the Plan to recognize the exercise of an Option or to sell or issue shares in violation of the Act or the law of any government having jurisdiction thereof. Any such postponement does not extend the terms of an Option and neither FFN nor its directors or officers have respect to any shares as to which the Option shall lapse because of such postponement.
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Types of Awards
Options . Options are rights to purchase a specified number of shares of common stock at a price fixed by the Committee. Each option must be represented by an award agreement that identifies the option as either an incentive stock option within the meaning of Section 422 of the Code or non-qualified option, which does not satisfy the conditions of Section 422 of the Code. The award agreement also must specify the number of shares of common stock that may be issued upon exercise of the options and set forth the exercise price of the options. The exercise price for options that qualify as incentive stock options may not be less than 100% of the fair market value of the common stock as of the date of grant. The option exercise price may be satisfied in cash, by check, by exchanging shares of common stock owned by the Participant, delivery of a properly executed exercise notice along with sale or loan proceeds, other consideration permitted by applicable laws or by a combination of these methods. Options have a maximum term of ten years from the date of grant. The Committee has broad discretion to determine the terms and conditions upon which options may be exercised, and the Committee may determine to include additional terms in the award agreements.
Stock Appreciation Rights . SARs may be granted in connection with a previously or contemporaneously granted stock option or independently. SARs are rights to receive cash or shares of common stock, or a combination thereof, as the Committee may determine. The Committee may provide in the SAR agreement circumstances under which SARs will become immediately exercisable and may accelerate the exercisability of any SAR at any time. To date, FFN has not issued any SARs under the Plan.
SARs granted in connection with a stock option are exercisable only when and to the extent that the related stock option is exercisable and expire on the date on which the related stock option expires. If a SAR granted in connection with a stock option is exercised, the related stock option ceases to be exercisable. The amount of the payment for SARs granted in connection with stock options is equal to the excess of (i) the fair market value on the date of exercise of the SAR of the common stock covered by the surrendered portion of the related stock option over (ii) the exercise price of the stock option covered by the surrendered portion of the related stock option.
SARs granted independently of stock options are exercisable as specified in the award agreement. The amount of the payment for SARs granted independently of stock options is equal to the excess of (i) the fair market value of the common stock covered by the exercised portion of the SAR as of the date of such exercise over (ii) the fair market value of the common stock covered by the exercised portion of the SAR as of the last market trading date prior to the date on which the SAR was granted; provided, however, that the Committee may place limits on the aggregate amount that may be paid upon exercise of a SAR.
Stock Awards . Restricted Stock grants are awards of common stock subject to vesting restrictions and/or restrictions on transferability. Shares of common stock that are issued as restricted stock will have a legend and may not be sold, transferred, or disposed of until the restrictions have lapsed. The Committee has broad discretion as to the specific terms and conditions of each award, including applicable rights upon certain terminations of employment and restrictions on the transferability of stock purchased pursuant to stock purchase rights. To date, FFN has not issued any restricted stock awards under the Plan.
Cash Bonuses . Cash bonus awards entitle the grantee to cash payments based upon the achievement of employment or pre-established long-term performance factors. The Committee has discretion to determine the Participants to whom cash bonus awards are to be made, the times in which such awards are to be made, the size of such awards, and all other conditions of such awards, including any performance requirements. To date, FFN has not issued any cash bonus awards under the Plan.
Adjustments upon Change of Capitalization
Subject to any required action by our stockholders, the number of shares of common stock covered by outstanding stock options, SARs, or restricted stock, and the number of shares of common stock which have been authorized for issuance under the Plan but as to which no award has been granted or which have been returned to the Plan upon cancellation or expiration of an award, as well as the price per share of common stock covered by each such outstanding award, will be proportionately adjusted for any increase or decrease in the number of issued shares of common stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the common stock, or any other increase or decrease in the number of issued shares of common stock effected without receipt of consideration by us.
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Transferability
Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant.
Amendment and Termination
Our Board of Directors may amend, alter, suspend or terminate the Plan at any time. Any amendment to the Plan must be approved by the stockholders to the extent such approval is required by the terms of the Plan, the rules and regulations of the Securities and Exchange Commission, or the rules and regulations of any exchange upon which FFNs stock is listed, if any. However, no amendment, alteration, suspension or termination of the Plan may impair the rights of any Participant, unless mutually agreed in writing by the Participant and the Committee.
Federal Income Tax Consequences
The following is a summary of the material anticipated United States federal income tax consequences of the Plan to FFN and the Participants. The summary is based on current federal income tax law, which is subject to change, and does not address state, local, or foreign tax consequences or considerations.
Stock Options . The grant of a stock option that does not have a readily ascertainable value will not result in taxable income at the time of the grant for either FFN or the Participant. Upon exercising an incentive stock option, the Participant will have no taxable income (except that the alternative minimum tax may apply) and FFN will receive no deduction. Upon exercising a nonqualified stock option, the Participant will recognize ordinary income in the amount by which the fair market value of common stock at the time of exercise exceeds the option exercise price, and FFN will be entitled to a deduction for the same amount. The Participants income is subject to withholding tax as wages.
The tax treatment of the Participant upon a disposition of shares of common stock acquired through the exercise of an option is dependent upon the length of time that the shares have been held and on whether such shares were acquired by exercising an incentive stock option or a nonqualified stock option. If an employee exercises an incentive stock option and holds the shares for at least two years from the date of grant and at least one year after exercise, then any gain or loss realized based on the exercise price of the option will be treated as long-term capital gain or loss. Shares obtained upon exercise of an incentive stock option that are sold without satisfying these holding periods will be treated as shares received from the exercise of a nonqualified stock option. Generally, upon the sale of shares obtained by exercising a nonqualified stock option, the Participant will treat the gain realized on the sale as a capital gain. Generally, there will be no tax consequence to FFN in connection with the disposition of shares of common stock acquired under a stock option, except that FFN may be entitled to a deduction in the case of a disposition of shares acquired upon exercise of an incentive stock option before the applicable holding periods have been satisfied.
Stock Appreciation Rights . The grant of a SAR will not result in taxable income to the Participant at the time of the award. Upon exercising the SAR, the Participant will recognize ordinary income in the amount by which the fair market value of the common stock or the amount of cash, as the case may be, exceeds the SAR exercise price, if any. FFN will be entitled to a deduction for the same amount. The Participants income is subject to withholding tax as wages. Upon a disposition of shares of common stock acquired through the exercise of the SAR, the Participant may recognize capital gain or loss, the character of which is dependent upon the length of time that the shares have been held. Generally, there will be no tax consequences to FFN in connection with the disposition of shares of common stock acquired under a SAR.
Stock Awards . The federal income tax consequences of awards of stock purchase rights will depend on the facts and circumstances of each award, and in particular, the nature of the restrictions imposed with respect to the common stock which is the subject of the award. In general, if the common stock is subject to a substantial risk of forfeiture, i.e., limited in terms of transferability, a taxable event occurs only when the risk of forfeiture lapses. At
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that time, the Participant will recognize ordinary income to the extent of the excess of the fair market value of the common stock on the date the risk ceases over the amount that the Participant paid for the shares, if any, and FFN will be entitled to a deduction in the same amount. Prior to the lapse of restrictions on the restricted stock, any dividends on such shares will be paid currently and will be treated as ordinary compensation income to the Participant, subject to withholding. Subsequent to the determination and satisfaction of the ordinary income tax consequences, any further gain or loss realized on the subsequent disposition of such stock will be a long- or short-term capital gain or loss depending upon the applicable holding period.
Alternatively, within thirty days after transfer of the restricted stock, a Participant may make an election under Section 83(b) of the Code, which would allow the Participant to include in income in the year that the restricted common stock is awarded an amount equal to the fair market value of the restricted stock on the date of such award determined as if the restricted common stock were not subject to restrictions. FFN is then entitled to a compensation-paid deduction in the same amount. The election is required to be written and delivered to FFN within that thirty-day period. The Participant is also required to confirm the election with the filing of the Participants federal income tax return for the year in which the award is made. Failure to satisfy either of these requirements may invalidate the intended election. In the event of a valid Section 83(b) election, the Participant will not recognize income at the time that the restrictions actually lapse. In addition, any appreciation or depreciation in the value of the stock and any dividends paid on the stock after a valid Section 83(b) election are not deductible by FFN as compensation paid. For purposes of determining the period of time that the Participant holds the restricted stock, the holding period begins on the award date when a Participant makes a Section 83(b) election. Further, any dividends received after the Section 83(b) election is made will constitute ordinary dividend income to the Participant and will not be deductible by FFN. If the restricted stock subject to the Section 83(b) election is subsequently forfeited, however, the Participant is not entitled to a deduction or tax refund.
Cash Bonus Awards . A Participant will realize ordinary compensation income upon receipt of a cash bonus award equaling the amount of cash received. Wage withholding rules will apply. FFN will be entitled to a deduction at the time of payment in an amount equal to such income.
Award Grants
The grant of awards under the Plan is at the discretion of the Committee. The Committee has made only awards of Incentive Stock Options, Nonqualified Stock Options and Restricted Stock. Outstanding awards were issued in the following amounts to the described groups of individuals:
2007-9/30/2013 |
||||
Total Granted Non-employee Directors |
89,300 | |||
Total Granted Employees |
1,111,141 | |||
Total Forfeited or expired |
-217,937 | |||
Total Exercised |
-5,755 | |||
Total Outstanding Equity Incentive Awards at 9/30/13 |
976,749 |
PROPOSAL TO ADJOURN THE FFN ANNUAL MEETING
If there are not sufficient votes to constitute a quorum or to approve the FFN merger proposal at the time of the FFN annual meeting, the annual meeting may be adjourned to a later date or dates in order to permit further solicitation of proxies. Except as required by the TBCA, the FFN board of directors is not required to fix a new record date to determine the FFN shareholders entitled to vote at the adjourned annual meeting. At the adjourned annual meeting, any business may be transacted which might have been transacted at the annual meeting. If the FFN board of directors does not fix a new record date, it is not necessary to give any notice of the time and place of the adjourned annual meeting other than an announcement at the annual meeting at which the adjournment is taken,
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unless the adjournment is for more than four months after the date fixed for the original annual meeting. If a new record date is fixed, notice of the adjourned annual meeting shall be given as in the case of an original annual meeting.
In order to allow proxies that have been received at the time of the annual meeting to be voted for an adjournment, if necessary, this proposal regarding the question of adjournment is being submitted to the FFN shareholders as a separate matter for their consideration. If approved, the adjournment proposal will authorize the holder of any proxy solicited by the FFN board of directors to vote in favor of adjourning the annual meeting and any later adjournments. If the FFN shareholders approve this adjournment proposal, FFN could adjourn the annual meeting and use the additional time to solicit additional proxies to gain a quorum for the annual meeting or approve the FFN merger proposal, including the solicitation of proxies from FFN shareholders who previously have voted against the FFN merger proposal. Among other things, approval of the adjournment proposal could mean that, even if proxies representing a sufficient number of votes against the FFN merger proposal have been received, FFN could adjourn the annual meeting without a vote on the FFN merger proposal and seek to convince the holders of those shares to change their votes to votes in favor of the FFN merger proposal.
Vote Required
The affirmative vote of holders of the majority of the shares for which votes are cast at the annual meeting is needed to approve this proposal. Abstentions and broker non-votes will not be counted as votes cast and, therefore, will not affect this proposal. Further, the failure to vote, either by proxy or in person, will not have an effect on this proposal. Unless instructions to the contrary are specified in a proxy properly voted and returned through available channels, the proxies will be voted FOR this proposal.
FFNS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR THE ADJOURNMENT PROPOSAL.
PROPOSAL TO ADJOURN THE MIDSOUTH SPECIAL MEETING
If there are not sufficient votes to constitute a quorum or to approve the merger agreement at the time of the MidSouth special meeting, the special meeting may be adjourned to a later date or dates in order to permit further solicitation of proxies. Except as required by the TBCA, the MidSouth board of directors is not required to fix a new record date to determine the MidSouth shareholders entitled to vote at the adjourned special meeting. At the adjourned special meeting, any business may be transacted which might have been transacted at the special meeting. If the MidSouth board of directors does not fix a new record date, it is not necessary to give any notice of the time and place of the adjourned special meeting other than an announcement at the special meeting at which the adjournment is taken, unless the adjournment is for more than four months after the date fixed for the original special meeting. If a new record date is fixed, notice of the adjourned special meeting shall be given as in the case of an original special meeting.
In order to allow proxies that have been received at the time of the special meeting to be voted for an adjournment, if necessary, this proposal regarding the question of adjournment is being submitted to the MidSouth shareholders as a separate matter for their consideration. If approved, the adjournment proposal will authorize the holder of any proxy solicited by the MidSouth board of directors to vote in favor of adjourning the special meeting and any later adjournments. If the MidSouth shareholders approve this adjournment proposal, MidSouth could adjourn the special meeting and use the additional time to solicit additional proxies to gain a quorum for the special meeting or approve the merger agreement, including the solicitation of proxies from MidSouth shareholders who previously have voted against the merger agreement. Among other things, approval of the adjournment proposal could mean that, even if proxies representing a sufficient number of votes against the merger agreement have been received, MidSouth could adjourn the special meeting without a vote on the proposal to approve the merger agreement and seek to convince the holders of those shares to change their votes to votes in favor of the proposal to approve the merger agreement.
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Vote Required
The affirmative vote of holders of the majority of the shares for which votes are cast at the special meeting is needed to approve this proposal. Abstentions and broker non-votes will not be counted as votes cast and, therefore, will not affect this proposal. Further, the failure to vote, either by proxy or in person, will not have an effect on this proposal. Unless instructions to the contrary are specified in a proxy properly voted and returned through available channels, the proxies will be voted FOR this proposal.
MIDSOUTHS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT MIDSOUTH SHAREHOLDERS VOTE FOR THE ADJOURNMENT PROPOSAL.
FFNs board of directors, at the time of the preparation of this joint proxy statement/prospectus, knows of no business to come before the FFN annual meeting other than that referred to herein. If any other business should come before the FFN annual meeting, the person named in the enclosed proxy will have discretionary authority to vote all proxies in accordance with their best judgment.
As to any other item or proposal that may properly come before the FFN annual meeting, including voting on a proposal omitted from this joint proxy statement/prospectus pursuant to the rules of the SEC, it is intended that proxies will be voted in accordance with the discretion of the proxy holders.
MidSouths board of directors, at the time of the preparation of this joint proxy statement/prospectus, knows of no business to come before the MidSouth special meeting other than that referred to herein. If any other business should come before the MidSouth special meeting, the person named in the enclosed proxy will have discretionary authority to vote all proxies in accordance with their best judgment.
As to any other item or proposal that may properly come before the MidSouth special meeting, including voting on a proposal omitted from this joint proxy statement/prospectus pursuant to the rules of the SEC, it is intended that proxies will be voted in accordance with the discretion of the proxy holders.
DESCRIPTION OF FFN CAPITAL STOCK
FFN is authorized by its charter to issue a maximum of 10,000,000 shares of common stock, no par value, and 1,000,000 shares of preferred stock, having no designated par value per share. There are 4,834,190 shares of common stock issued and outstanding at the date of this joint proxy statement/prospectus. This total does not include 28,685 shares of restricted stock that have been issued but are not fully vested as of the date of this joint proxy statement/prospectus. Also, there are 31,877 shares reserved for the exercise of previously issued 2010 Warrants and 1,500,000 shares reserved for the exercise of stock options, restricted stock and other equity incentives under FFNs Omnibus Equity Incentive Plan. See MANAGEMENT - Remuneration of Directors and Officers. There were 10,000 shares of Senior Non-Cumulative Perpetual Preferred Stock, Series A with a liquidation preference of $1,000 per share issued and outstanding at the date of this joint proxy statement/prospectus. The outstanding shares of common stock are fully paid and nonassessable.
There is no established market for the shares or other securities of FFN. There can be no assurance that any such market will develop in the future. Shareholders wishing to transfer shares or other securities of FFN do so in isolated, individually negotiated transactions although, upon request, FFN may attempt to assist shareholders wishing to transfer shares or other securities of FFN and locating purchasers for such shares or other securities. It is not anticipated that the shares will be listed on any securities exchange in the near future. See RISK FACTORS - There Is No Trading Market for Shares of FFN Common Stock.
Common Stock
The following is a summary of certain rights and provisions of the shares of common stock. This summary does not purport to be complete and is qualified in its entirety by reference to the charter and bylaws of FFN and the Tennessee Business Corporation Act (the TBCA).
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Dividend Rights and Limitations on Payment of Dividends . Except as described below, the holders of common stock are entitled to receive, pro rata, such dividends and other distributions as and when declared by FFNs board of directors out of the assets and funds legally available therefore. FFNs ability to pay dividends is dependent upon the ability of FFN to earn income and is especially dependent upon the ability of FSB to earn income and pay dividends. FSB may declare dividends only so long as its minimum regulatory capital requirements will not be impaired. In addition, the board of directors of FSB under state banking law may not declare dividends in any calendar year that exceeds the total of its net income of that year combined with its retained net income of the preceding two years without the approval of the Commissioner of Financial Institutions. Also, despite the availability of net or accumulated earnings in later years of operations and the capacity to maintain capital at levels required by governmental regulation, the directors of FSB and/or the directors of FFN may choose to retain all earnings for the operation of the business. Neither FFN nor FSB has paid any dividends on its common stock.
Voting Rights . The holders of common stock are entitled to one vote per share on all matters presented for a shareholder vote. There is no provision for cumulative voting. A set of bylaws is adopted for the guidance and control of FFN. Amendments to the bylaws are effected by majority vote of the shareholders or directors.
Board of Directors . The business of FFN is controlled by a board of directors, which is elected by a plurality vote of the shareholders. Shareholders are required to state nominations for directors in writing and file such nominations with the secretary of FFN. To be timely, nominations for directors must be mailed and received at the principal office of FFN not less than 120 days prior to the meeting at which directors are to be elected. The directors will hold office for one (1) year terms. Any vacancies in the board of directors and any newly created directorships may be filled only by a majority vote of the directors then in office. The current Board is comprised of seven (7) directors. If the merger is consummated, the board will be increased to ten (10) directors. The number of directors serving on the Board may be changed by a resolution adopted by the affirmative vote of a majority of the directors then in office. Each director shall serve until his or her successor is elected and qualified or until his or her earlier death, resignation, or removal. The provisions of this section of the charter may be amended with a majority vote of the shareholders.
Liquidation Rights . Upon the voluntary or involuntary dissolution, liquidation, or winding up of the affairs of FFN, after the payment in full of its debts and other liabilities, and the payment of any accrued but unpaid dividends and any liquidation preference on outstanding shares of preferred stock, the remainder of its assets, if any, is to be distributed pro rata among the holders of shares of common stock. Subject to any required regulatory approvals, the board of directors of FFN, at its discretion, may authorize and issue shares of preferred stock and debt obligations, whether or not subordinated, without prior approval of the shareholders, thereby further depleting the liquidation value of the shares of common stock.
Preemptive Rights . Owners of shares of common stock of FFN will not have the preemptive right to purchase additional shares offered by FFN in the future. That is, FFN may sell additional shares to particular shareholders or to non-shareholders without first offering each then-current shareholder the right to purchase the same percentage of such newly offered shares as is the shareholders percentage of the then-outstanding shares of FFN.
Redemption . The shares may not be redeemed except upon consent of both the shareholder and FFN, as well as the Federal Reserve.
Conversion Rights . The holders of shares have no conversion rights.
Liability to Further Calls or to Assessments by FFN . The shares are not subject to liability for further calls or to assessments by FFN.
Preferred Stock
The Charter of FFN authorizes the issuance by FFN of up to 1,000,000 shares of its preferred stock. The preferred stock may be issued by vote of the Directors without shareholder approval. The preferred stock may be issued in one or more classes and series, with such designations, full or limited voting rights (or without voting rights), redemption, conversion or sinking fund provisions, dividend rates or provisions, liquidation rights, and other preferences and limitations as the board of directors may determine in the exercise of its business judgment. The preferred stock may be issued by the board of directors for a variety of reasons.
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The preferred stock could be issued in public or private transactions in one or more (isolated or series of) issues. The shares of any issue of preferred stock could be issued with rights, including voting, dividend, and liquidation features, superior to those of any issue or class of shares, including the shares subject to be issued pursuant to the merger. The issuance of shares of the preferred stock could serve to dilute the voting rights or ownership percentage of holders of the Shares (or any other shares). The issuance of shares of the preferred stock might also serve to deter or block any attempt to obtain control of FFN or to facilitate any such attempt.
In 2011, the board of directors authorized management of FFN to consider participating in the voluntary Small Business Lending Fund (SBLF) authorized by Congress under the Small Business Jobs and Credit Act of 2010 (see SUPERVISION AND REGULATION). The purpose of the SBLF is to provide capital to community banking organizations in order to incentivize increased small business lending. The more a bank participating in the SBLF increases its small business lending, the lower the rate it will pay on the funds received under the program.
The capital is provided to banks by having the United States Department of the Treasury (Treasury) provide a bank with capital by purchasing Tier 1 qualifying preferred stock or equivalents. To encourage community bank participation, the cost of capital will start no higher than 5%. If a banks small business lending increases by 10% or more, then the rate will fall as low as 1%. Banks that increase their lending by amounts less than 10% can benefit from rates set between 2% and 4%. If lending does not increase in the first two years, however, the rate will increase to 7%. After 4.5 years, the rate will increase to 9% if the bank has not already repaid the SBLF funding.
Management reviewed the SBLF program and determined that participation in the program would be beneficial to FFN. FFN was notified by the Treasury that FFN had received preliminary approval to participate in the SBLF in the amount of $10,000,000. As a result, on September 27, 2011, FFN issued 10,000 shares of Senior Non-Cumulative Perpetual Preferred Stock, Series A (Series A Preferred Stock) to the Treasury for a purchase price of $10,000,000. The specific terms of the Series A Preferred Stock are as follows:
Issuer: | The term Issuer includes a bank holding company or savings and loan holding company with total consolidated assets of less than $10 billion. FFN applied and qualified with Treasury as an Issuer. | |
Financial
Instrument: |
Senior perpetual noncumulative preferred stock (Senior Preferred), liquidation preference of $1,000 per share. | |
Regulatory
Capital Treatment: |
Tier 1. | |
Investment
Amount: |
An Issuer that is a bank holding company or savings and loan holding company that has total assets of $1 billion or less may issue a total amount of Senior Preferred equal to not less than 1% and not more than 5% of its risk-weighted assets (RWA). Total assets are measured as reported in the call reports of the Issuer or, for holding companies, the combined total assets reported in the call reports of the Issuers insured depository institution subsidiaries, as of the end of the fourth quarter of calendar year 2009, and RWA are measured as reported in the most recent call reports as of the date of application. | |
Ranking: | With respect to all distributions, the Senior Preferred will rank senior to common stock and pari passu with all existing preferred stock other than preferred shares that rank junior to any existing preferred shares. | |
Calculation of
Qualified Small Business Lending: |
Qualified Small Business Lending, as measured for the purpose of calculating the dividend rate for the Senior Preferred, is defined as the sum of all lending by the Issuer of the following types, as reported in the Issuers most recent quarterly call report: |
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(i) commercial and industrial loans; | ||
(ii) owner-occupied nonfarm, nonresidential real estate loans; | ||
(iii) loans to finance agricultural production and other loans to farmers; and | ||
(iv) loans secured by farmland; | ||
and, within these loan categories, excluding: | ||
(A) any loan or group of loans to the same borrower and its affiliates with an original principal or commitment amount greater than $10 million or that is made to a borrower that had (or whose ultimate parent company had) more than $50 million in revenues during the most recent fiscal year ended as of the date of origination; |
||
(B) to the extent not included in (A) or (C), the portion of any loans guaranteed by the U.S. Small Business Administration, any other U.S. Government agency, or a U.S. Government-sponsored enterprise; and |
||
(C) to the extent not included in (A) or (B), the portion of any loans held by the Issuer for which the risk is assumed by a third party (for example, the portion of loans that have been participated), |
||
while, further, adding to the amount determined above, the cumulative amount of net loan charge-offs with respect to Qualified Small Business Lending as measured since, and including, the quarter ending September 30, 2010. | ||
The amount of Qualified Small Business Lending, including the exclusions listed above, shall be calculated and reported on the date of Treasurys investment (the Investment Date) by the Issuer in a format specified by Treasury (the Initial Supplemental Report) and during the first nine calendar quarters thereafter (each, a Quarterly Supplemental Report), concurrent with the Issuers publication of its call report. | ||
Calculation of
Lending Baseline: |
Not later than three business days prior to the Investment Date, the Issuer shall submit an Initial Supplemental Report reporting Qualified Small Business Lending as of the Investment Date and for the each of the four full quarters ending on June 30, 2010. In calculating such Qualified Small Business Lending, if any gains in Qualified Small Business Lending resulted from mergers and acquisitions, or purchases of loans during any quarter during such four quarter period, the Issuer shall recalculate Qualified Small Business Lending for all earlier quarters in such four quarter period to include such gains on a pro forma combined basis. The average of Qualified Small Business Lending reported for these four quarters shall be the baseline against which subsequent lending is measured (the Baseline). | |
When applicable, at the beginning of each quarter that begins after the Investment Date, the Baseline will be increased by the amount of any gains realized by the Issuer resulting from mergers and acquisitions, or purchases of loans, as measured since, and including, the quarter ending on September 30, 2010. |
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Dividend Rate: | The Senior Preferred will pay noncumulative dividends. The dividend rate will be adjusted to reflect the amount of an Issuers change in Qualified Small Business Lending from the Baseline, based on the following schedule: |
Dividend Rate Following Investment Date
Increase in Qualified Small Business Lending from the Baseline |
First 9
Quarters |
Quarter 10
to Year 4.5 |
After
Year 4.5 |
|||
0% or less |
5% | 7% | 9% | |||
more than 0%, but less than 2.5% |
5% | 5% | 9% | |||
2.5% or more, but less than 5% |
4% | 4% | 9% | |||
5% or more, but less than 7.5% |
3% | 3% | 9% | |||
7.5% or more, but less than 10% |
2% | 2% | 9% | |||
10% or more |
1% | 1% | 9% |
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Right to Pay
Dividends and Repurchase Shares: |
Unless otherwise restricted by the appropriate federal or state banking agency, the Issuer may pay dividends on preferred shares ranking pari passu with the Senior Preferred, junior preferred shares, or other junior securities (including common stock), or redeem or repurchase equity securities, subject to the limitations listed under Provisions upon Nonpayment of Dividends, if after giving effect to the dividend payment or share repurchase, the dollar amount of the Issuers Tier 1 capital would be at least 90% of the amount existing at the time immediately following the Investment Date (the Tier 1 Dividend Threshold), excluding any subsequent net charge-offs and redemptions of the Senior Preferred since the Investment Date, subject to (i) and (ii) below: | |
(i) During the period beginning on the second anniversary of the Investment Date and ending on the day before the tenth anniversary of the Investment Date, for every 1% increase in Qualified Small Business Lending the Issuer has achieved above the Baseline, the Tier 1 Dividend Threshold will be decreased by a dollar amount equal to 10% of the amount of the Senior Preferred investment; and | ||
(ii) For Issuers that are not publicly traded, 1 during the period beginning on the tenth anniversary of the Investment Date and ending on the Redemption Date, the Issuer may not effect any repurchases or declare or pay any dividends on preferred shares ranking pari passu with the Senior Preferred, junior preferred shares, or other junior securities (including common stock). | ||
Provisions upon
Nonpayment of Dividends: |
For any missed payment: The following restrictions will apply whenever dividends payable on the Senior Preferred have not been declared and paid for any quarterly dividend period:
(i) The Chief Executive Officer and Chief Financial Officer of the Issuer will be required to provide written notice, in a form reasonably satisfactory to Treasury, which is to include the rationale of the Issuers board of directors for not declaring dividends; and |
|
(ii) No repurchases may be effected and no dividends may be declared or paid on preferred shares ranking pari passu with the Senior Preferred, junior preferred shares, or other junior securities (including common stock) during the current quarter and for the next three quarters following the failure to declare and pay dividends on the Senior Preferred (provided, however, that, in any such quarter in which Treasurys dividend is paid, dividend payments on shares ranking pari passu may be paid to the extent necessary to avoid any resulting material covenant breach). | ||
After four missed payments: Whenever dividends on the Senior Preferred have not been declared and paid for four quarterly dividends or more, whether or not consecutive, and during such time the Issuer was not subject to a regulatory determination that prohibits the declaration and payment of dividends, the board of directors of the Issuer must certify, in writing, that the Issuer used best efforts to declare and pay such quarterly dividends in a manner consistent with safe and sound banking practices and the directors fiduciary obligation. |
1 | As used herein, publicly traded means a company (1) whose securities are traded on a national securities exchange and (2) required to file, under the federal securities laws, periodic reports such as the annual (Form 10-K) and quarterly (Form 10-Q) reports with either the Securities and Exchange Commission or its primary federal bank regulator. A company may be required to do so by virtue of having securities registered under Section 12 of the Exchange Act, which applies to all companies that are traded on an exchange or that have $10 million in assets and 2,000 shareholders of record or Section 15(d) of the Exchange Act which requires companies that have filed a registration statement under the Securities Act of 1933, as amended, to file reports required under Section 13 of the Exchange Act, e.g., periodic reports. |
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After five missed payments: Whenever dividends on the Senior Preferred have not been declared and paid for five quarterly dividends or more, whether or not consecutive, Treasury will have the right, but not the obligation, to appoint a representative to serve as an observer on the Issuers board of directors. This right will end when full dividends have been paid for four consecutive subsequent dividend periods. | ||
After six missed payments: Whenever dividends on the Senior Preferred have not been declared and paid for six quarterly dividend periods or more, whether or not consecutive, if the liquidation preference of the Senior Preferred is $25 million or more, the holder of the Senior Preferred will have the right to elect two directors to the Issuers board of directors. The right to elect directors will end when full dividends have been paid for four consecutive subsequent dividend periods. | ||
Small Business Lending Plan: |
The Issuer shall provide to the appropriate federal banking agency, and, if applicable, state banking agency, a small business lending plan at the time it submits its application for this program. The plan will be confidential supervisory information. | |
Downstreaming of Investment: |
The Issuer, if it is a holding company, shall contribute not less than 90% of the amount of Treasurys investment to its insured depository institution subsidiaries; provided, that no insured depository institution may receive more than 5% of its RWA (if the Issuer has total assets of $1 billion or less). | |
Voting Rights: |
The Senior Preferred will be nonvoting, other than for consent rights granted to Treasury with respect to (i) any authorization or issuance of shares ranking senior to the Senior Preferred, (ii) any amendment to the rights of the Senior Preferred, and (iii) any merger, exchange, dissolution, or similar transaction which would affect the rights of the Senior Preferred. | |
Transferability: |
The Senior Preferred will not be subject to any restrictions on transfer. The Issuer may merge or sell all, or substantially all, of its assets (as well as, in the case of an Issuer that is a bank holding company, any insured depository institution subsidiary), provided that the rights of the Senior Preferred and the obligations of the Issuer relating thereto are assumed and an equivalent Senior Preferred is issued by the successor entity. | |
Access and Information: |
The Issuer will permit the holder of the Senior Preferred, the holders designees, the Inspector General of the Department of the Treasury, and the Comptroller General of the United States to examine the Issuers corporate books and discuss matters relevant to the investment with principal officers, after being provided with reasonable notice. | |
Certifications: |
The Issuer will provide the following certifications to Treasury: | |
(i) The Issuers Chief Executive Officer and Chief Financial Officer, as well as the directors (trustees) of the Issuer who attest to the Issuers call report (or those of its insured depositories, in the case of a holding company), will certify to Treasury that information provided on each Supplemental Report is accurate. | ||
(ii) Following the Investment Date, within 90 days of the end of each fiscal year of the Issuer during which a Supplemental Report is submitted, the Issuer will receive and submit to Treasury a certification from its auditors that the processes and controls used to generate the Supplemental Reports are satisfactory. |
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(iii) Annually, until the Redemption Date, the Issuer will certify to Treasury that (A) businesses that received loans from the Issuer following the Investment Date have certified to the Issuer that their principals have not been convicted of, or pleaded nolo contendre to a sex offense against a minor, as required by Section 3011(c) of the Small Business Jobs and Credit Act of 2010, and (B) these certifications will be retained in accordance with standard recordkeeping practices established by the appropriate federal banking agency. | ||
(iv) Annually, until the Redemption Date, the Issuer will certify to Treasury that it is in compliance with the Customer Identification Program requirements set forth in 31 C.F.R. § 103.121. | ||
Issuers must submit valid and timely certifications to be eligible for any dividend rate adjustment on the Senior Preferred. Issuers must also complete a short annual lending survey. |
2010 Warrants
FFN previously issued warrants to subscribers in connection with stock offerings in 2007 and 2010. No warrants are being offered in conjunction with the merger. The 2010 Warrants outstanding as of the date of this joint proxy statement/prospectus allow holders to purchase 31,877 shares at $12.00 per share. All of these 2010 Warrants expire March 30, 2017.
All of the 2010 Warrants provide that if, after the issuance of the 2010 Warrants, the number of outstanding shares is increased by a stock dividend payable in shares, or by a split up of shares, then on the day following the date fixed for the determination of holders of shares entitled to receive such stock dividend or split up, the number of shares issuable on exercise of the warrant shall be increased in proportion to such increase in outstanding shares and the then applicable 2010 Warrant price shall be correspondingly decreased. These 2010 Warrants also provide that if after the issuance of the 2010 Warrant, the number of outstanding shares is decreased by a combination or reclassification of shares then, after the combination or reclassification, the number of shares issuable upon exercise of such warrant shall be decreased in proportion to such decrease in outstanding shares and the then applicable 2010 Warrant price shall be correspondingly increased.
If, after the issuance of the 2010 Warrants any class of capital stock of FFN (other than common stock) is issued by way of a stock dividend on outstanding common stock, then, commencing with the day following the date fixed for the determination of holders of common stock entitled to receive such stock dividend, in addition to any share of common stock receivable upon exercise of the warrants, the 2010 Warrant holders shall, upon such exercise of the 2010 Warrants, be entitled to receive, as nearly as practicable, the same number of shares of dividend stock, plus any shares issued upon any subsequent change, replacement, subdivisions, or combination thereof to which the holders would have been entitled had their 2010 Warrants been exercised immediately prior to such dividend. No adjustment in the 2010 Warrant price shall be made merely by virtue of the happening of any such event.
If, after the issuance of the 2010 Warrants there is any capital reorganization, redemption, or reclassification of the common stock of FFN, or consolidation or merger of FFN with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected, then, as a condition of such reorganization, redemption, reclassification, consolidation, merger, or sale, lawful and fair provision shall be made whereby the 2010 Warrant holders shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified in the 2010 Warrants and in lieu of the shares of common stock of FFN immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, such shares of stock, securities, or assets as may be issued or payable with respect to or in exchange for a number of outstanding shares of such common stock equal to the number of shares of such stock immediately theretofore purchasable and receivable upon the exercise of the rights represented by the 2010 Warrants had such reorganization, reclassification, consolidation, merger, or sale not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of the 2010 Warrant holders to the end that the provisions hereof (including, without limitation, provisions for adjustment of the 2010 Warrant price and of the number of shares purchasable upon the exercise of the 2010 Warrants) shall thereafter be applicable, as nearly as may be in relation to any share of stock, securities, or assets thereafter deliverable upon the exercise hereof. FFN shall not effect any such consolidation, merger, or sale unless prior to the consummation thereof the successor corporation (if other than FFN) resulting
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from such consolidation or merger, or the corporation purchasing such assets, shall assume by written instrument executed and delivered to FFN the obligation to deliver to the 2010 Warrant holders such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holders may be entitled to purchase.
In the event the common stock of FFN is to be registered under the Act or is traded on a national securities exchange at $15.00 or more for forty-five (45) consecutive days, FFN may redeem the 2010 Warrants at any time thereafter with not less than thirty (30) days written notice to the holder of such 2010 Warrant, in whole or in part, at a redemption price of $1.00 per warrant; provided, however, that the holder of the 2010 Warrant may exercise the 2010 Warrant, in whole or in part, during such thirty (30) day period.
Upon the issuance of the 2010 Warrants, cumulative adjustments in the number of shares issuable on exercise of the 2010 Warrants shall be made only to the nearest multiple of one whole share, i.e., fractional shares shall be disregarded.
FFN may, without the consent of the holders of the 2010 Warrants, make changes in the 2010 Warrant that are required to cure any ambiguity or to correct any defective or inconsistent provision or clerical omission or mistake in the 2010 Warrant, add to the covenants and agreements that FFN is required to observe, or result in the surrender of any right or power reserved to or conferred upon FFN in the 2010 Warrant, but which changes do not or will not adversely affect, alter or change the rights, privileges, or immunities of the holders of 2010 Warrants.
The 2010 Warrant does not entitle the holder thereof to any of the rights of a shareholder of FFN. If the 2010 Warrant is lost, stolen, mutilated or destroyed, FFN, on such terms as to indemnity or otherwise as it, in its discretion may impose (which shall, in the case of a mutilated 2010 Warrant, include the surrender thereof), will issue a new warrant of like denomination, tenor and date as the 2010 Warrant so lost, stolen, mutilated or destroyed. FFN shall reserve and keep available at all times a number of its authorized but unissued shares that will be sufficient to permit the exercise in full of all outstanding 2010 Warrants.
Any notice or demand to be given or made by the holder of the 2010 Warrant to FFN shall be sufficiently given or made if sent by mail, first class or registered, postage prepaid, addressed to FFN at its principal office as set forth on the cover of the 2010 Warrant. Any notice or demand to be given or made by FFN to or on the holder of the 2010 Warrant shall be sufficiently given or made if sent by mail, first class or registered, postage prepaid, addressed to such holder at the address contained in the corporate records of FFN.
Incorporators and Employees Equity Incentive Awards
Each of the incorporators of FSB (the Incorporators) received stock options to purchase 12.5% of the number of shares that such Incorporators purchased in the initial offering of shares (up to a maximum of 6,250 options) at an exercise price of $10.00 per share. As a result, a total of 33,750 Incorporators options were issued in 2007. These options for the group of Incorporators vested in equal increments each year for five years and are exercisable in whole or in part until the tenth anniversary of the issuance of the options. See MANAGEMENT - Remuneration of Directors and Officers.
A Qualified-Nonqualified Stock Option Plan was adopted in 2007 and amended in 2013 to increase the number of shares reserved thereunder from 1,000,000 to 1,500,000 and to allow for the issuance of additional equity-based awards, including shares of restricted stock and stock appreciation rights. As amended, the Plan is known as FFNs 2007 Omnibus Equity Incentive Plan (the Plan), and is available for the issuance of equity incentives to employees, directors and others. Shareholders have approved the reservation of shares of common stock for issuance upon the exercise of equity incentive awards under the Plan equal to up to 1,500,000 shares. A total of 857,344 stock options and 28,685 shares of restricted stock granted to employees are currently outstanding, and 89,300 options granted to current and former non-employee directors are currently outstanding. There remain 486,102 options or other equity incentive awards not yet granted under the plan. All options granted at this time have an exercise price ranging from $10.00 to $13.00 per share. See MANAGEMENT - Remuneration of Directors and Officers.
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COMPARATIVE RIGHTS OF FFN AND MIDSOUTH SHAREHOLDERS
At the effective time of the merger, holders of MidSouth stock will become holders of FFN common stock. Because both FFN and MidSouth are organized under the laws of the State of Tennessee, differences in the rights of holders of FFN common stock and those of holders of MidSouth stock arise from differing provisions of their respective charters and bylaws.
The following is a summary of differences between the rights of FFN shareholders and MidSouth shareholders. The summary is necessarily general, and it is not intended to be a complete statement of all differences affecting the rights of shareholders. It is qualified in its entirety by reference to the TBCA, as well as the charter and bylaws of each corporation. FFN and MidSouth shareholders should consult their own legal counsel with respect to specific differences and changes in their rights as shareholders that would result from the proposed merger.
Franklin
Financial Network Charter |
MidSouth
Bank Charter |
|||
Common Stock Unlimited voting rights |
Yes | Yes | ||
Number of authorized shares of common stock (million) |
10.00 | 20.00 | ||
Number of outstanding common shares before the merger (million) |
4.86 | 3.87 | ||
Estimated number of outstanding common shares after the merger (million) |
7.77 | N/A | ||
Estimated voting percentage of MidSouth shareholders pre-merger* |
N/A | 100% | ||
Estimated voting percentage of MidSouth shareholders post-merger* |
36% | N/A | ||
Subject to future issuances of common stock |
Yes | Yes | ||
Subject to future issuances of preferred stock |
Yes | Yes | ||
Preemptive rights |
No | No | ||
Series 2009A Preferred Stock (Full voting rights, preferred dividend and liquidation rights)** |
No | Yes | ||
Series 2011-A Preferred Stock (Full voting rights, preferred dividend and liquidation rights)** |
No | Yes | ||
Authorized number of shares of preferred stock before the merger (million) |
1.00 | 20.00 | ||
Authorized number of shares of preferred stock after the merger (million) |
1.00 | N/A | ||
SBLF Preferred Stock (Up to $10 million)*** |
Yes | No | ||
Classified board with staggered terms |
No | Yes | ||
Board terms (Number of years) |
1 | 3 | ||
Right to receive dividends as and when declared by the board |
Yes | Yes | ||
Dividends limited by SBLF Preferred*** |
Yes | No | ||
Shares fully paid and nonassessable |
Yes | Yes | ||
Cumulative voting for Directors |
No | No | ||
Shareholder nominations of board members permitted |
Yes | Yes | ||
Advance notice of shareholder nominations (days before annual meeting) |
120 | 60 | ||
Shareholder proposals permitted |
Yes | Yes | ||
Limitation on director liability to the extent permitted by law |
Yes | Yes | ||
Maximum right to indemnification for officers and directors |
Yes | Yes | ||
Board members subject to removal by shareholders with or without cause |
Yes | Yes | ||
Board members subject to removal for cause by majority of entire board |
Yes | No | ||
Board members subject to removal for cause by 75% of entire board |
No | Yes | ||
Board vacancies can be filled by simple majority of the board |
Yes | Yes | ||
Maximum number of board members |
No limit | 25 | ||
Minimum number of board members |
3 | 5 | ||
Advance notice of shareholder nominations of directors |
Yes | Yes | ||
Bylaw or charter shareholder nomination information requirements |
No | Yes | ||
Advance notice of shareholder proposals |
No | Yes | ||
Supermajority of shareholders required to call special shareholder meeting (75%) |
No | Yes | ||
Shareholder right to act by written consent |
Yes | Yes | ||
Opt-In to the Tennessee Business Combination Act and related statutes |
No | Yes |
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* | Prior to the merger, each MidSouth preferred share carries one vote. After the merger, non-dissenting MidSouth preferred shares will be converted at the preferred stock exchange ratio into shares of FFN common stock. Collectively, the exchanged MidSouth stock and the converted MidSouth preferred stock is anticipated to make about 36% of the outstanding FFN common stock after the merger. This number may be reduced by the exercise of dissenters rights and it may be less in the event FFN were to issue additional shares of its common stock prior to completion of the merger. |
** | Preferred stock, each share of which converts to two shares of MidSouth Bank common stock at a one-to-two conversion ratio also receives twice the exchange ratio for MidSouth stock in the merger. |
*** | FFNs SBLF preferred stock and its burdens and benefits are described at Description of FFN Capital Stock-Preferred Stock. |
General - FFN
Franklin Financial Network, Inc. is a business corporation incorporated on April 5, 2007, under the laws of the State of Tennessee for the purpose of building a diversified financial services company focused on the needs of community banks and their customers anchored by an innovative, trend-setting community bank in Franklin, Tennessee, fifteen miles south of Nashville. Franklin is in Williamson County, one of the most rapidly growing counties in the nation. FFN acquired 100% of the shares of FSB on November 26, 2007. FFN is registered as a bank holding company under the Federal Reserve Act, and as a result, its activities are subject to the supervision of the Federal Reserve. It is contemplated that FFN may seek to enter businesses closely related to banking or to acquire existing businesses already engaged in such activities. Any acquisition by FFN will require prior approval of the Federal Reserve and, in some instances, other regulatory agencies. One such acquisition that FFN has completed is the acquisition of Banc Compliance Group, Inc. (See Banc Compliance Group, Inc. below.)
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FFN is in competition with those banks and other financial institutions that compete with FSB. In addition, in attempting to acquire other permissible entities, and engaging in activities closely related to banking, FFN is competing with other bank holding companies, many of which have far greater assets and financial resources than FFN and whose common stock may be more widely traded than that of FFN.
The mailing address of FFN is 722 Columbia Avenue, Franklin, Tennessee 37064-2828.
General - FSB
FSB is an independent and locally oriented commercial bank headquartered in Williamson County, Tennessee. FSB began business on November 5, 2007. The board of directors believes that the existing and future banking market of Franklin and the greater Williamson County area present an excellent opportunity for a locally based commercial bank for the following reasons: (i) such an institution is able to understand the commercial banking needs of the communitys businesses and quickly respond to its customers; and (ii) the expansion of the Williamson County economy can provide a solid foundation for growth of local financial institutions.
FSB provides a full range of banking and related financial services with a focus on service to individual clients, small businesses, commercial businesses, and mortgage banking for FSBs clients. The Board of Directors believes the banking experience of management and the many business relationships developed in Williamson County, combined with the diversity and growth of the Franklin market, provide an opportunity for the development of FSB.
The general banking business conducted includes the receipt of deposits, making of loans, issuance of checks, acceptance of drafts, consumer credit operations, and all aspects of a full-service bank. FSB applies the same standards and requirements in the conduct of all facets of its business to all of its customers.
In 2011, FSB launched its Investment Management division led by Executive Vice President, Chief Retail Officer, David McDaniel. FSB is committed to developing a personalized strategy to help its customers with their financial growth and stability. The goal is to help its customers create a customized investment plan around each individuals unique set of circumstances, life, and financial goals.
FSB conducts business from its main office located at 722 Columbia Avenue, Franklin, Tennessee 37064-2828 (telephone number 615-236-2265). FSB has branches in the cities of Brentwood, Spring Hill and the Cool Springs, Westhaven and Berry Farms communities of Franklin, Tennessee. FSB also has a mortgage loan production office in Brentwood, Tennessee.
Banc Compliance Group, Inc.
Banc Compliance Group, Inc. is in the business of providing risk-based compliance consulting for financial institutions. The company, which is a wholly owned subsidiary of FFN, provides its clients with up-to-date information regarding regulatory changes or other compliance-related issues affecting the financial industry. Specific services include:
| Quarterly compliance audit reviews |
| Assistance with written policies and procedures tailored to individual banks |
| Quarterly HMDA/CRA data integrity audits |
| Annual assistance with the filing of HMDA/CRA LARs with FFIEC, if needed |
| Written board reports of compliance audit findings and presentation of such reports to senior management and board committee |
| Regulatory examination assistance |
| E-mail notification of regulatory changes/proposed changes |
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| Assistance with required annual compliance training with specialized compliance training available |
| Fair lending self-assessment assistance |
| CRA performance context |
Banc Compliance Group, Inc. operates out of offices located at 256 Seaboard Lane, Suite A-102, Franklin, Tennessee 37067.
FFN, FSB and Banc Compliance Group, Inc.s offices are all leased facilities. The banking locations are centrally located and in a high traffic/exposure area. Automatic teller machines and overnight deposit drops are positioned to serve FSBs clients. Additional office locations for FFN and branches for FSB may be established as market opportunities surface.
Description of the Business
Mission Statement
The mission of FFN is to enhance shareholder value through the ownership and management of FSB, which is based in Franklin, Tennessee. The mission is accomplished by profitably marketing technology-based financial services to consumers, businesses, government entities and non-profit organizations while maintaining a personal touch. In addition, FFN will profitably market financial services to community banks to enhance revenue and provide services that address the un-met needs of community banks. FSB offers an array of financial products designed to work together to address the financial needs of customers, including electronic banking oriented businesses and cash management customers.
Board of Directors and management priorities are financial soundness, growth, profitability and corporate citizenship. The focus on customer deposits equals the focus on customer loans. FSB addresses the particular financial needs of the mature market, a customer segment that management understands very well and has high potential to attract. Emerging technology-led trends in banking that appeal to younger customers drives the development of products and delivery methods designed to engage this age group.
Customers and Target Market
FSB is in the business of commercial banking to provide banking services to four customer markets: consumers, businesses, government entities, and non-profit organizations. All four target customer segments are well represented in Williamson County.
Williamson Countys median household income was $89,063 in 2011. An estimated 25,922 families in Williamson County earned $100,000 or more in 2012. Middle and upper income consumers account for a high percentage of the countys population and a ready market for FSBs financial products and services. With a highly-educated population (approximately 50% of residents have a B.A. degree or higher), Williamson County is a technology-advanced community with consumers who demand the most current communication and product delivery methods available. Population growth in Williamson County, at 4.56% from 2010 to 2012, is projected to accelerate to 12.11% from 2012 to 2017.
Local incomes are increasing, with a string of high-profile international corporate headquarter relocations to Williamson County. Industries with strong representation in the county include healthcare, construction, automotive, technology, retail and music, providing a diverse business base. Exceptionally low office space vacancy rates are spurring reasonable but steady commercial development without over-heating the economic climate. Williamson County is increasingly becoming a business destination, with business-friendly local government and excellent quality of life, including an outstanding public school system. Although Williamson County has always had an abundance of high-end residential real estate, residential and commercial real estate developers are changing the way they build to accommodate the community, offering neighborhoods with high-end housing with retail centers.
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Government and non-profit entities represent two additional target customer markets with very good opportunities for community-focused cash management products and services. Management has specific expertise with both customer groups and focuses its attention on attracting both with a goal of serving as good community stewards.
Delivery System
FSB concentrates on the Williamson County market and searches for avenues to provide banking services at the least possible cost. FSB seeks to operate with a minimum number of full-service brick and mortar locations through the development and use of other less-costly delivery systems such as ATMs, credit cards, debit cards, internet banking and other electronic methods.
Services
FSB operates as a full-service financial institution for its customers. FSBs deposit products include certificates of deposit, money market deposit accounts as well as demand, savings, and NOW deposit accounts. CDs have various maturities ranging from thirty days to five years. In order to meet all financial needs of the customers, FSB may offer retirement planning, financial planning, investment services and insurance products through its financial services department. Some of these products may be outsourced.
FSB endeavors to build relationships with selected small and medium-sized businesses in the expanded market area with a combination of services. Loan customers are encouraged to bring their deposit business to FSB, including transaction accounts, CDs, and retirement accounts. This practice further increases the deposit base for FSB and assists in controlling overall marketing costs related to deposit acquisition.
Mortgage Loans
A mortgage loan department has been established for the origination of loans to be sold in the secondary market to meet the long term, fixed rate needs of FSBs clients. Construction loans also are available for residential and commercial purposes.
Sources of Deposits and Loans
FSB generates loans by personal contacts within the conventional trading markets for such services, by its officers, directors, and employees, who include persons with banking experience in these markets.
The acquisition of deposits and other retail sources of funds (Repurchase Accounts) is a primary thrust of FSB. Traditional deposit accounts are solicited by officers, directors, and employees; FSB also solicits local deposits through the internet and offers internet-only deposit accounts to supplement traditional depository accounts. In addition, FSB is a member of the Federal Home Loan Bank for use as a general funding source and may use brokered deposits to balance funding needs.
Commercial Banking
Traditional commercial banking services are the mainstay of FSB. FSBs focus is to service small to medium-sized businesses and self-employed professionals. Certain not-for-profit and governmental entities find FSBs services attractive.
FSBs focus in the commercial banking market is to provide high quality service for its customers supported by the latest bank technology. In the credit service area, FSB endeavors to give its commercial customers access to a highly-trained team of credit and deposit service specialists who remain with the customer relationship for long periods of time. Credit decision-making is customized to meet the borrowers financial needs and designed for rapid response. Credit judgments involve FSBs senior management and, where legally required, involve the directors of FSB. Government guaranteed lending services such as the S.B.A. and Rural Development Programs may be utilized as needed.
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Consumer Banking
FSB offers a broad range of financial services designed to meet the credit, thrift, and transactional needs of local consumers. First mortgage real estate loans, home equity loans, credit card loans, and other personal loans are the focus of consumer lending. Consumer depository and transaction needs are met through dual delivery systems of traditional branches and the evolving electronic system of the internet.
Recent Trends
From a financial perspective, management believes FSB has reached key milestones significantly faster than most banks during their first six full years of operation. As of September 30, 2013, FSB had $387.4 million in loans, including loans held for sale; assets of $659.9 million, $523.7 million in deposits and $64.1 million of shareholders equity. Challenges and expectations expand as FSB becomes more mature. Management now embarks on new initiatives with enthusiasm and confidence, addressing changes in banking over recent years. In the past, banks needed branches on every corner; today that is considered an outdated way of doing business. Many of FSBs customers like to visit with personnel at FSB, and FSB will continue to offer a welcoming environment. Other customers prefer to bank online. FSB provides a full range of banking products designed to attract all types of customers.
FSB continues to enhance banking convenience by offering the option of opening accounts online (savings accounts, checking accounts, and certificates of deposit). Customers can access banking services without leaving the comfort of their home or office. FSBs remote deposit system allows consumers to deposit checks online without the need to come to a branch. Business customers enjoy this convenience as well.
Local businesses are important to FSB. FSB has many products that can help its corporate customers become more profitable, including sweep accounts, credit card processing, remote capture and automated lock box. A unique offering is workplace banking, which allows employers to offer a special banking benefits package to their employees. FSB also can meet the borrowing needs of businesses through traditional working capital loans, as well as account receivable loans and business expansion loans. FSBs specialty is customizing services to the unique needs of the business.
Regulatory Approvals
The federal Gramm-Leach-Bliley Act authorizes bank holding companies to engage in securities, insurance and other activities that are financial in nature or incidental to a financial activity. The activities of bank holding companies that do not elect financial holding company status are limited to activities that the Federal Reserve previously has determined in regulations and orders to be closely related to banking and permissible for bank holding companies. The Gramm-Leach-Bliley Act defines a financial holding company as a bank holding company that meets certain eligibility requirements, such as that all depository institutions controlled by the bank holding company be well capitalized and well managed, that the bank holding company submit to the Federal Reserve a declaration that the company elects to be a financial holding company and a certification that all of the depository institutions controlled by the company are well capitalized and well managed, and that all of the insured depository institutions controlled by the company have achieved at least a satisfactory rating at the most recent examination of the institution under the Community Reinvestment Act. FFN has not elected to be classified as a financial holding company.
FFN and FSB are subject to extensive governmental regulation and control. Compliance with state and federal banking laws will have a material effect on the business and operations of FFN and FSB. The operation of FSB will at all times be subject to state and federal banking laws, regulations, and procedures, and FSB continues to be subject to regulation by the TDFI, Federal Reserve and the FDIC. Non-banking financial institutions, such as securities brokerage firms, insurance companies, and money market funds, are now permitted to offer services which compete directly with services offered by banks. The services which banks are now permitted to offer have been expanded, and most restrictions have been removed on the rate of interest that may be paid by banking institutions on deposits. See SUPERVISION AND REGULATION.
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Competition
All phases of FFNs and FSBs business are highly competitive. FFN and FSB are subject to intense competition from various financial institutions and other companies or firms that offer financial services. FSB competes for deposits with other commercial banks, savings and loan associations, credit unions and issuers of commercial paper and other securities, such as money-market and mutual funds. In making loans, FSB competes with other commercial banks, savings and loan associations, consumer finance companies, credit unions, leasing companies, and other lenders. Information about specific competition in Williamson County is included under RISK FACTORS - Competition For Deposits and Loans is Expected To Be Intense, and No Assurance Can Be Given That FFN Will Be Successful in Its Efforts to Compete with Other Financial Institutions.
The banking industry continues to see consolidation, and the Board of Directors believes the trend of having either extremely large regional banks or smaller community banks will continue. The successful implementation of FFNs business plan and the growth of the target market should combine to produce opportunities for FFN and FSB.
While the direction of recent and proposed federal legislation seems to favor increased competition between banks and different types of financial or other institutions for both deposits and loans, it is not possible to forecast the impact such developments may have on commercial banking in general or as to FSB or Corporation in particular. FSB will continue to compete with these and other financial institutions, many of which have far greater assets and financial resources than FSB and whose common stock may be more widely traded than that of FFN. See SUPERVISION AND REGULATION. No assurance can be given that FSB will be successful in its efforts to compete with such other institutions.
Distinguishing FSB
FSB distinguishes itself in the community because of the following initiatives:
Service Culture . Every employee position has service goals and objectives. All customers are greeted by competent employees with a warm and friendly attitude, and a proactive approach in addressing customer service issues and challenges.
Technology . FSB offers innovative internet-based and electronic banking products and processes to supplement its traditional branch banking delivery system.
Empowerment . Employees are empowered with appropriate decision-making authority so that customer issues and requests can be resolved quickly.
Employee Community Involvement . Appropriate staff are leaders and active in the community. Activities include membership and leadership in various committees and organizations throughout the community.
Promotion and Advertising. FSB engages in image and product promotion and advertising to paint it as a bank uniting traditional bank values with newly evolving internet and electronic delivery systems.
Sales Culture . The entire staff is active in bank marketing and sales campaigns and is compensated for sales results.
Public and Community Relations . FSB supports numerous community organizations.
Property
FFNs and FSBs main office and headquarters operation is located at 722 Columbia Avenue, Franklin, Tennessee 37064. This location is leased by FSB. FSB operates branches at the following locations: 3301 Aspen Grove Drive, Suite 106, Franklin, Tennessee 37067; 4930 Thoroughbred Lane, Brentwood, Tennessee 37027; 1015 Westhaven Blvd., Suite 150, Franklin, Tennessee 37064; 40 Moss Lane, Suite 100, Franklin, Tennessee 37064; and 2035 Wall Street, Spring Hill, Tennessee 37174. All of these locations are leased by FSB. In addition, FSB operates a mortgage office at 7101 Executive Center Drive, Suite 110, Brentwood, Tennessee 37027. This location is leased by FSB. Banc Compliance Group, Inc. operates out of offices located at 256 Seaboard Lane, Suite A-102,
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Franklin, Tennessee 37067. Banc Compliance Group, Inc. leases this office. Certain lease agreements for these properties are with entities owned by related parties of FFN and FSB. See CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS OF FFN - Certain Transactions with Management.
Employees
Management employs as its officers individuals who have substantial experience and proven records in the banking industry as well as proven histories in business and commerce, and pays competitive salaries to attract and retain such persons. It is not anticipated FFN or FSB will experience any substantial difficulty in attracting and retaining the caliber of officers and other employees desired. FFN offers a typical health and disability insurance plan to its employees and those of its subsidiaries, as well as a 401(k) Plan and officer stock incentive awards. See MANAGEMENT - Remuneration of Directors and Officers.
As of January 31, 2014, FFN has seven directors, and FFN and its subsidiaries have 124 full-time employees and three part-time employees. FFN considers its relationship with its employees to be excellent.
The executive officers are compensated consistent with their responsibilities and experience and comparable to local market norms. Compensation includes a base salary, eligibility for an annual bonus based on board approved performance criteria and health insurance. Officers may enter into employment agreements as competitive factors dictate and which might include appropriate severance, change in control payments, and non-compete agreements. Currently, there are ten members of senior management that have entered into such employment agreements. FFN sponsors a qualified 401(k) savings plan that allows eligible employees to defer a portion of their salary. The plan provides for FSB to make annual discretionary contributions to the plan, which generally are made in the form of employer securities.
Trademarks
FFN obtained registrations with the United States Patent and Trademark Office for the protection of the trademarks FRANKLIN SYNERGY BANK ® and FRANKLIN FINANCIAL NETWORK ® . Management does not believe these trademarks are confusingly similar to trademarks used by other institutions in the financial services business and intends to protect the use of these trademarks nationwide.
Litigation
As of the date of this joint proxy statement/prospectus, neither FFN nor any subsidiary is a party defendant to any pending legal proceeding. Similarly, the property of neither FFN nor any subsidiary is subject to such proceedings.
Policies and Procedures
The Board of Directors of FSB has established a statement of lending policies and procedures being used by loan officers of FSB when making loans. Asset quality is of utmost importance and an independent loan review process has been established to monitor FSBs lending function. It is imperative that the Board of Directors and management have an independent and objective evaluation of the quality of specific individual loans and of the overall quality of the total portfolio.
The Board of Directors of FSB also has established an investment policy that guides FSB officers in determining the investment portfolio of FSB. Other policies include a code of ethics policy, audit policy, loan policy, fair lending, compliance, bank secrecy, personnel and information system policies.
Under the Federal Community Reinvestment Act (CRA), the Federal Reserve evaluates FSBs record of helping to meet the credit needs of its community consistent with safe and sound operations. The Federal Reserve also takes this record into account when deciding on certain applications submitted by FSB. FSBs assessment area is Williamson County and Davidson County for business loans, mortgage, and general financial services.
FSB is a fair and equal credit lender. Managements lending objectives are to make credit products available to all segments of FSBs market and community. Williamson County has one moderate census tract and Davidson County has 9 moderate income census tracts. Products are being developed and marketed to individuals and businesses located in those census tracts.
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The Market: Williamson County, Tennessee
Franklin is in Williamson County, Tennessee. With a population of approximately 192,911 in 2012, Williamson County ranks as one of the fastest growing counties in the U.S. Between the years 2010 and 2012, the population grew by 4.56%, and from 2012 to 2017 the population is estimated to grow by an additional 12.11%. Projected growth in Williamson County provides a growing market for FSB.
Median 2011 household income in Williamson County was $89,063. An estimated 25,922 families in Williamson County earned more than $100,000 in 2012, while 5.5% of the population on average (from 2007-2011) was classified at the poverty level. Unemployment in Williamson County was 6.1% in June 2013.
Williamson County is a relatively young county, with a median age of 39 years. The most populous age group in Williamson County is age 35 to 54 years followed by the age group 0 to 14 years. According to 2011 Census data, there were over 6,000 businesses in Williamson County with the healthcare, entertainment, automotive, education, construction, and retail industries heavily represented.
The following summaries of statutes and regulations affecting banks and their holding companies do not purport to be complete. Such summaries are qualified in their entirety by reference to the statutes and regulations described.
Bank Holding Company Regulation
FFN is a bank holding company within the meaning of the Bank Holding Company Act of 1956, as amended (the Holding Company Act), and is registered with the Federal Reserve (see INFORMATION ABOUT FFN - Regulatory Approvals). Banking subsidiaries of bank holding companies are subject to restrictions under federal law, which limit the transfer of funds by the subsidiary banks to their respective holding companies and non-banking subsidiaries, whether in the form of loans, extensions of credit, investments or asset purchases. Such transfers by any subsidiary bank to its holding company or any nonbanking subsidiary are limited in amount to 10% of the subsidiary banks capital and surplus and, with respect to FFN and all such non-banking subsidiaries, to an aggregate of 20% of such banks capital and surplus. Furthermore, such loans and extensions of credit are required to be secured in specified amounts. The Holding Company Act also prohibits, subject to certain exceptions, a bank holding company from engaging in or acquiring direct or indirect control of more than 5% of the voting stock of any company engaged in non-banking activities. An exception to this prohibition is for activities expressly found by the Federal Reserve to be so closely related to banking or managing or controlling banks as to be a proper incident thereto.
As a holding company, FFN is required to file with the Federal Reserve semi-annual reports and such additional information as the Federal Reserve may require. The Federal Reserve may also make examinations of FFN.
According to Federal Reserve policy, holding companies are expected to act as a source of financial strength to each subsidiary bank and to commit resources to support each such subsidiary. This support may be required at times when a holding company may not be able to provide such support. Furthermore, in the event of a loss suffered or anticipated by the FDIC - either as a result of default of a banking or thrift subsidiary of FFN or related to FDIC assistance provided to a subsidiary in danger of default - the other banking subsidiaries of FFN may be assessed for the FDICs loss, subject to certain exceptions.
Regulation Y requires persons acting directly or indirectly or in concert with one or more persons to give the Federal Reserve 60 days advanced written notice before acquiring control of a holding company. Under the regulation, control is defined as the ownership or control with the power to vote 25% or more of any class of voting securities of the holding company. The regulation also provides for a presumption of control if a person owns, controls, or holds with the power to vote 10% or more (but less than 25%) of any class of voting securities, and if no other person owns a greater percentage of that class of voting securities.
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Various federal and state statutory provisions limit the amount of dividends subsidiary banks can pay to their holding companies without regulatory approval. The payment of dividends by any bank also may be affected by other factors, such as the maintenance of adequate capital for such subsidiary bank. In addition to the foregoing restrictions, the Federal Reserve has the power to prohibit dividends by holding companies if their actions constitute unsafe or unsound practices. The Federal Reserve has issued a policy statement on the payment of cash dividends by holding companies, which expresses the Federal Reserves view that a holding company experiencing earnings weaknesses should not pay cash dividends that exceed its net income or that could only be funded in ways that weaken the holding companys financial health, such as by borrowing. Furthermore, the TDFI also has authority to prohibit the payment of dividends by a Tennessee bank when it determines such payment to be an unsafe and unsound banking practice.
A holding company and its subsidiaries are also prohibited from acquiring any voting shares of, or interest in, any banks located outside of the state in which the operations of the holding companys subsidiaries are located, unless the holding company and its subsidiaries are well-capitalized and well managed. Further, a holding company and its subsidiaries are prohibited from engaging in certain tie-in arrangements in connection with the extension of credit or provision of any property or service. Thus, an affiliate of a holding company may not extend credit, lease, sell property, or furnish any services or fix or vary the consideration for these on the condition that (i) the customer must obtain or provide some additional credit, property or services from or to its bank holding company or subsidiaries thereof or (ii) the customer may not obtain some other credit, property, or services from a competitor, except to the extent reasonable conditions are imposed to assure the soundness of the credit extended.
In approving acquisitions by holding companies of banks and companies engaged in the banking-related activities described above, the Federal Reserve considers a number of factors, including the expected benefits to the public such as greater convenience, increased competition, or gains in efficiency, as weighed against the risks of possible adverse effects such as undue concentration of resources, decreased or unfair competition, conflicts of interest, or unsound banking practices. The Federal Reserve is also empowered to differentiate between new activities and activities commenced through the acquisition of a going concern.
The Attorney General of the United States may, within 30 days after approval by the Federal Reserve of an acquisition, bring an action challenging such acquisition under the federal antitrust laws, in which case the effectiveness of such approval is stayed pending a final ruling by the courts. Failure of the Attorney General to challenge an acquisition does not, however, exempt the holding company from complying with both state and federal antitrust laws after the acquisition is consummated or immunize the acquisition from future challenge under the anti-monopolization provisions of the Sherman Act.
Capital Guidelines
The Federal Reserve has issued risk-based capital guidelines for bank holding companies and member banks. Under the guidelines, the minimum ratio of capital to risk-weighted assets (including certain off-balance sheet items, such as standby letters of credit) is 8%. To be considered a well capitalized bank or bank holding company under the guidelines, a bank or bank holding company must have a total risk-based capital ratio in excess of 10%. At least half of the total capital is to be comprised of common equity, retained earnings, and a limited amount of perpetual preferred stock, after subtracting goodwill and certain other adjustments (Tier I capital). The remainder may consist of perpetual debt, mandatory convertible debt securities, a limited amount of subordinated debt, other preferred stock not qualifying for Tier I capital, and a limited amount of loan loss reserves (Tier II capital). FSB is subject to similar capital requirements adopted by the FDIC. In addition, the Federal Reserve and the FDIC have adopted a minimum leverage ratio (Tier I capital to total assets) of 3%. Generally, banking organizations are expected to operate well above the minimum required capital level of 3% unless they meet certain specified criteria, including that they have the highest regulatory ratings. Most banking organizations are required to maintain a leverage ratio of 3%, plus an additional cushion of at least 1% to 2%. The guidelines also provide that banking organizations experiencing internal growth or making acquisitions are expected to maintain strong capital positions substantially above the minimum supervisory levels without significant reliance upon intangible assets.
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In July 2013, the federal banking regulators, in response to the statutory requirements of Dodd-Frank, adopted regulations implementing the Basel Capital Adequacy Accord (Basel III), which had been approved by the Basel member central bank governors in 2010 as an agreement among the countries central banks and bank regulators on the amount of capital banks must hold as a cushion against losses and insolvency. The new minimum capital to risk-weighted assets (RWA) requirements are a common equity Tier 1 capital ratio of 4.5% and a Tier 1 capital ratio of 6.0%, and a total capital ratio of 8.0%. The minimum leverage ratio (Tier 1 capital to total assets) is 4.0%. The new rule also changes the definition of capital, mainly by adopting stricter eligibility criteria for regulatory capital instruments, and new constraints on the inclusion of minority interests, mortgage-servicing assets (MSAs), deferred tax assets (DTAs), and certain investments in the capital of unconsolidated financial institutions. In addition, the new rule requires that most regulatory capital deductions be made from common equity tier 1 capital.
Under the Basel III, in order to avoid limitations on capital distributions, including dividend payments and certain discretionary bonus payments to executive officers, a banking organization must hold a capital conservation buffer composed of common equity tier 1 capital above its minimum risk-based capital requirements. The buffer is measured relative to RWA. Phase-in of the capital conservation buffer requirements will begin on January 1, 2016 and the requirements will be fully phased in on January 1, 2019. A banking organization with a buffer greater than 2.5% once the capital conservation buffer is fully phased in would not be subject to limits on capital distributions or discretionary bonus payments; however, a banking organization with a buffer of less than 2.5% would be subject to increasingly stringent limitations as the buffer approaches zero. The new rule also prohibits a banking organization from making distributions or discretionary bonus payments during any quarter if its eligible retained income is negative in that quarter and its capital conservation buffer ratio was less than 2.5% at the beginning of the quarter. The eligible retained income of a banking organization is defined as its net income for the four calendar quarters preceding the current calendar quarter, based on the organizations quarterly regulatory reports, net of any distributions and associated tax effects not already reflected in net income. When the new rule is fully phased in, the minimum capital requirements plus the capital conservation buffer will exceed the prompt corrective action (PCA) well-capitalized thresholds.
Under the new rule, MSAs and DTAs are subject to stricter limitations than those applicable under the current general risk-based capital rule. More specifically, certain DTAs arising from temporary differences, MSAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock are each subject to an individual limit of 10% of common equity tier 1 capital elements and are subject to an aggregate limit of 15% of common equity tier 1 capital elements. The amount of these items in excess of the 10% and 15% thresholds are to be deducted from common equity tier 1 capital. Amounts of MSAs, DTAs, and significant investments in unconsolidated financial institutions that are not deducted due to the aforementioned 10% and 15% thresholds must be assigned a 250% risk weight. Finally, the new rule increases the risk weights for past-due loans, certain commercial real estate loans, and some equity exposures, and makes selected other changes in risk weights and credit conversion factors.
The new minimum capital requirements of Basel III are effective on January 1, 2015, whereas the capital conservation buffer and the deductions from common equity tier 1 capital phase in over time. Similarly, nonqualifying capital instruments phase out over time, except as described above. Most existing nonqualifying capital instruments issued by community banks before May 19, 2010, such as trust preferred securities and cumulative perpetual preferred stock, will continue to count as regulatory capital.
Failure to meet statutorily mandated capital guidelines or more restrictive ratios separately established for a financial institution could subject a banking institution to a variety of enforcement remedies available to federal regulatory authorities, including issuance of a capital directive, the termination of deposit insurance by the FDIC, a prohibition on accepting or renewing brokered deposits, limitations on the rates of interest that the institution may pay on its deposits, and other restrictions on its business.
Tennessee Banking Act; Federal Deposit Insurance Act
FSB is incorporated under the banking laws of the State of Tennessee and, as such, is subject to the applicable provisions of those laws. FSB is subject to the supervision of the TDFI and to regular examination by that department. FSB is a member of the Federal Reserve and therefore is subject to Federal Reserve regulations and policies and is subject to regular exam by the Federal Reserve. FSBs deposits are insured by the FDIC through the Deposit Insurance Fund (DIF), and FSB is, therefore, subject to the provisions of the Federal Deposit Insurance Act (FDIA).
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The FDIC has adopted a risk-based assessment system for insured depository institutions that takes into account the risks attributable to different categories and concentrations of assets and liabilities. Under the Dodd-Frank Act, the FDIC was required to adopt regulations that would base deposit insurance assessments on total assets less capital rather than deposit liabilities and to include off-balance sheet liabilities of institutions and their affiliates in risk-based assessments. EESA (see below) provided for a temporary increase in the basic limit on federal deposit insurance coverage from $100,000 to $250,000 per depositor. This increased level of basic deposit insurance was made permanent by the Dodd-Frank Act. In addition, on October 14, 2008, the FDIC instituted temporary unlimited FDIC coverage of non-interest-bearing deposit transaction accounts, but this extra coverage expired December 31, 2012. The Dodd-Frank Act also repealed the prohibition on paying interest on demand transaction accounts, but did not extend unlimited insurance protection for these accounts.
The FDIC may terminate its insurance of deposits if it finds that the institution has engaged in unsafe and unsound practices, is in an unsafe or unsound condition to continue operations, or has violated any applicable law, regulation, rule, order or condition imposed by the FDIC.
Tennessee statutes and the federal law regulate a variety of the banking activities of FSB, including required reserves, investments, loans, mergers and consolidations, issuances of securities, payments of dividends, and the establishment of branches. There are certain limitations under federal and Tennessee law on the payment of dividends by banks. A state bank, with the approval of the TDFI, may transfer funds from its surplus account to the undivided profits (retained earnings) account or any part of its paid-in-capital account. The payment of dividends by any bank is dependent upon its earnings and financial condition and, in addition to the limitations referred to above, is subject to the statutory power of certain federal and state regulatory agencies to act to prevent what they deem unsafe or unsound banking practices. The payment of dividends could, depending upon the financial condition of FSB, be deemed to constitute such an unsafe or unsound practice. Also, without regulatory approval, a dividend only can be paid to the extent of the net income of the bank for that year plus the net income of the prior two years. The FDIA prohibits a state bank, the deposits of which are insured by the FDIC, from paying dividends if it is in default in the payment of any assessments due the FDIC.
State banks also are subject to regulation respecting the maintenance of certain minimum capital levels (see above), and FSB is required to file annual reports and such additional information as the Tennessee Banking Act and Federal Reserve regulations require. FSB also is subject to certain restrictions on loan amounts, interest rates, insider loans to officers, directors and principal shareholders, tie-in arrangements, privacy, transactions with affiliates, and many other matters. Strict compliance at all times with state and federal banking laws is required.
Tennessee law contains limitations on the interest rates that may be charged on various types of loans and restrictions on the nature and amount of loans that may be granted and on the types of investments which may be made. The operations of banks are also affected by various consumer laws and regulations, including those relating to equal credit opportunity and regulation of consumer lending practices. All Tennessee banks must become and remain insured banks under the FDIA. (See 12 U.S.C. § 1811, et seq .).
Under Tennessee law, state banks are prohibited from lending to any one person, firm, or corporation amounts more than 15% of its equity capital accounts, except (i) in the case of certain loans secured by negotiable title documents covering readily marketable nonperishable staples or (ii) FSB may make a loan to one person, firm or corporation of up to 25% of its equity capital accounts with the prior written approval of FSBs Board of Directors or finance committee (however titled).
Significantly undercapitalized depository institutions may be subject to a number of requirements and restrictions, including orders to sell sufficient voting stock to become adequately capitalized, requirements to reduce total assets and cessation of receipt of deposits from correspondent banks. Critically undercapitalized depository institutions are subject to appointment of a receiver or conservator.
Federal legislation, including proposals to revise the bank regulatory system and to limit or expand the investments that a depository institution may make with insured funds, is from time to time introduced in Congress. The TDFI and the Federal Reserve will examine FSB periodically for compliance with various regulatory requirements. Such examinations, however, are for the protection of the DIF and for depositors and not for the protection of investors and shareholders.
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FDICIA
The Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA) substantially revised the depository institution regulatory and funding provisions of the Federal Deposit Insurance Act, or FDIA, and made revisions to several other federal banking statutes. Among other things, FDICIA requires the federal banking regulators to take prompt corrective action in respect of FDIC-insured depository institutions that do not meet minimum capital requirements. FDICIA establishes five capital tiers: well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized and critically undercapitalized. Under applicable regulations, a FDIC-insured depository institution is defined to be well capitalized if it maintains a Leverage Ratio of at least 5%, a risk adjusted Tier 1 Capital Ratio of at least 6% and a Total Capital Ratio of at least 10% and is not subject to a directive, order or written agreement to meet and maintain specific capital levels. An insured depository institution is defined to be adequately capitalized if it meets all of its minimum capital requirements as described above. In addition, an insured depository institution is considered undercapitalized if it fails to meet any minimum required measure, significantly undercapitalized if it is significantly below such measure and critically undercapitalized if it fails to maintain a level of tangible equity equal to not less than 2% of total assets. An insured depository institution may be deemed to be in a capitalization category that is lower than is indicated by its actual capital position if it receives an unsatisfactory examination rating.
The capital-based prompt corrective action provision of FDICIA and their implementing regulations apply to FDIC-insured depository institutions and are not directly applicable to the holding companies which control those institutions. However, the Federal Reserve has indicated that, in regulating bank holding companies, it will take appropriate action at the holding company level based on an assessment of the effectiveness of supervisory actions imposed upon subsidiary depository institutions pursuant to these provisions and regulations.
FDICIA generally prohibits an FDIC-insured depository institution from making any capital distribution (including payment of dividends) or paying any management fee to its holding company if the depository institution would thereafter be undercapitalized. Undercapitalized depository institutions are subject to restrictions on borrowing from the Federal Reserve. In addition, undercapitalized depository institutions are subject to growth limitations and are required to submit capital restoration plans. A depository institutions holding company must guarantee the capital plan, up to an amount equal to the lesser of 5% of the depository institutions assets at the time it becomes undercapitalized or the amount of the capital deficiency when the institution fails to comply with the plan. The federal banking agencies may not accept a capital plan without determining, among other things, that the plan is based on realistic assumptions and is likely to succeed in restoring the depository institutions capital. If a depository institution fails to submit an acceptable plan, it is treated as if it is significantly undercapitalized.
Significantly undercapitalized depository institutions may be subject to a number of requirements and restrictions, including orders to sell sufficient voting stock to become adequately capitalized, requirements to reduce total assets and cessation of receipt of deposits from correspondent banks. Critically undercapitalized depository institutions are subject to appointment of a receiver or conservator generally within 90 days of the date on which they became critically undercapitalized.
The FDIC has adopted regulations under FDICIA governing the receipt of brokered deposits and pass-through insurance. Under the regulations, a bank cannot accept or rollover or renew brokered deposits unless it is well capitalized or it is adequately capitalized and receives a waiver from the FDIC. A bank that cannot receive brokered deposits also cannot offer pass-through insurance on certain employee benefit accounts. Whether or not it has obtained this waiver, an adequately capitalized bank may not pay an interest rate on any deposits in excess of 75 basis points over certain index prevailing market rates specified by regulation. There are no such restrictions on a bank that is well capitalized.
FDICIA contains numerous other provisions, including accounting, audit and reporting requirements, termination of the too big to fail doctrine except in special cases, limitations on the FDICs payment of deposits at foreign branches, new regulatory standards in such areas as asset quality, earnings and compensation and revised regulatory standards for, among other things, powers of state banks, real estate lending and capital adequacy. FDICIA also requires that a depository institution provide 90 days prior notice of the closing of any branches.
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Gramm-Leach-Bliley Act
The Gramm-Leach-Bliley Act ratified new powers for banks and bank holding companies, especially in the areas of securities and insurance. This law also includes requirements regarding the privacy and protection of customer information held by financial institutions, as well as many other providers of financial services. There are provisions providing for functional regulation of the various services provided by institutions among different regulators. There are other provisions which limit the future expansion of unitary thrift holding companies which now prevent companies like Wal-Mart from owning a thrift institution. Finally, among many other sections of this law, there is some relief for small banks from the regulatory burden of the Community Reinvestment Act.
USA PATRIOT Act
The USA PATRIOT Act of 2001 contains the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 (the IMLAFA). The IMLAFA substantially broadens existing anti-money laundering legislation and the extraterritorial jurisdiction of the United States, imposes new compliance and due diligence obligations, creates new crimes and penalties, compels the production of documents located both inside and outside the United States, including those of foreign institutions that have a correspondent relationship in the United States, and clarifies the safe harbor from civil liability to customers. The U.S. Treasury Department has issued a number of regulations implementing the USA PATRIOT Act that apply certain of its requirements to financial institutions such as FFNs banking and broker-dealer subsidiaries. The regulations impose new obligations on financial institutions to maintain appropriate policies, procedures and controls to detect, prevent and report money laundering and terrorist financing. The Treasury Department expects to issue a number of additional regulations which will further clarify the USA PATRIOT Acts requirements.
The IMLAFA requires all financial institutions, as defined, to establish anti-money laundering compliance and due diligence programs. Such programs must include, among other things, adequate policies, the designation of a compliance officer, employee training programs, and an independent audit function to review and test the program.
The Housing and Economic Recovery Act of 2008 (The Housing Act)
The Housing and Economic Recovery Act of 2008 (the Housing Act) contains three distinct divisions: Division A, which addresses housing finance reform and the rescue of FNMA (Fannie Mae ) and FHLMC (Freddie Mac); Division B, which provides for foreclosure prevention; and Division C, which contains tax incentives, reforms and revenue offsets. The Housing Act is intended to help stabilize the nations housing markets and provide relief for homeowners. The legislation offers emergency financing to Fannie Mae and Freddie Mac, sets up a $300-billion fund for the Federal Housing Administration (the FHA) to insure new 30-year fixed-rate mortgages for at-risk borrowers in owner-occupied homes if their lenders agree to write down loan balances to 90% of the homes current appraised value, and restores banks authority to make investments designed primarily to promote the public welfare through the provision of housing, services, or jobs, including distressed middle-income communities. To free up safer and more affordable mortgage credit, the Housing Act permanently increases to $625,500 (from $417,000) the size of home loans that Fannie Mae and Freddie Mac can buy and the FHA can insure. They also could buy and back mortgages 15% higher than the median home price in certain areas. The measure includes $15 billion in tax cuts, including a significant expansion of the low-income housing tax credit and a credit of up to $7,500 for first-time home buyers for houses purchased between April 9, 2008, and July 1, 2009. Provisions of this law were updated by later legislation.
Emergency Economic Stabilization Act of 2008 and the American Recovery and Reinvestment Act of 2009
The Emergency Economic Stabilization Act of 2008 (EESA) provides authority to the Treasury Secretary to restore liquidity and stability to the U.S. financial system and to ensure the economic well-being of Americans. EESA authorizes the Secretary to establish a Troubled Asset Relief Program (TARP) to purchase troubled assets from financial institutions and establish an Office of Financial Stability within the Treasury Department to implement the TARP. EESA requires the Treasury Secretary to establish guidelines and policies to carry out the purposes of the Act, including a program to guarantee troubled assets of financial institutions and the establishment of risk-based premiums for such guarantees sufficient to cover anticipated claims.
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EESA requires federal entities to work with servicers to encourage loan modifications, considering net present value to the taxpayer. For mortgages and mortgage-backed securities acquired through TARP, the Secretary must implement a plan to mitigate foreclosures and to encourage servicers of mortgages to modify loans through Hope for Homeowners and other programs. The Secretary can use loan guarantees and credit enhancement to avoid foreclosures. The Secretary is to coordinate with other federal entities that hold troubled assets in order to identify opportunities to modify loans, considering net present value to the taxpayer.
Other provisions of EESA increase FDIC insurance from $100,000 to $250,000 on deposits, protect the Exchange Stabilization Fund from incurring any losses due to the temporary money market mutual fund guarantee by requiring the program created in the Act to reimburse the Fund, restate the Securities and Exchange Commissions authority to suspend the application of Statement Number 157 of the Financial Accounting Standards Board (mark to market) if the SEC determines that it is in the public interest and protects investors, change the tax treatment of losses on the preferred stock of certain GSEs (Freddie and Fannie) for financial institutions, apply limits on executive compensation and golden parachutes for certain executives of employers who participate in the auction program, and extend current law tax forgiveness on the cancellation of mortgage debt.
The American Recovery and Reinvestment Act of 2009 (ARRA) is intended to provide a stimulus to the U.S. economy in the wake of the economic downturn. ARRA includes federal tax cuts, expansion of unemployment benefits and other social welfare provisions, and domestic spending in education, health care, and infrastructure, including the energy sector. ARRA also includes numerous non-economic recovery related items that were either part of longer-term plans (e.g. a study of the effectiveness of medical treatments) or desired by Congress (e.g. a limitation on executive compensation in federally-aided banks).
Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act)
In July 2010, the Dodd-Frank Act was signed into law, incorporating numerous financial institution regulatory reforms. Many of these reforms are being implemented over the course of 2011-13 through regulations being adopted by various federal banking and securities regulations. The following discussion describes the material elements of the regulatory framework. Many of the Dodd-Frank Act provisions are stated to only apply to larger financial institutions and do not directly impact community-based institutions like FSB. For instance, provisions that regulate derivative transactions and limit derivatives trading activity of federally-insured institutions, enhance supervision of systemically significant institutions, impose new regulatory authority over hedge funds, limit proprietary trading by banks, and phase-out the eligibility of trust preferred securities for Tier 1 capital are among the provisions that do not directly impact FSB either because of exemptions for institutions below a certain asset size or because of the nature of FSBs operations. Other provisions that will impact FSB will:
| Change the assessment base for federal deposit insurance from the amount of insured deposits to consolidated assets less tangible capital, eliminate the ceiling and increase the size of the floor of the DIF, and offset the impact of the increase in the minimum floor on institutions with less than $10 billion in assets. |
| Make permanent the $250,000 limit for federal deposit insurance. |
| Repeal the federal prohibition on payment of interest on demand deposits, thereby permitting depositing institutions to pay interest on business transaction and other accounts. |
| Centralize responsibility for consumer financial protection by creating a new agency, the Consumer Financial Protection Bureau, responsible for implementing federal consumer protection laws, although banks below $10 billion in assets will continue to be examined and supervised for compliance with these laws by their federal bank regulator. |
| Restrict the preemption of state law by federal law and disallow national bank subsidiaries from availing themselves of such preemption. |
| Impose new requirements for mortgage lending, including new minimum underwriting standards, prohibitions on certain yield-spread compensation to mortgage originators, special consumer protections for mortgage loans that do not meet certain provision qualifications, prohibitions and limitations on certain mortgage terms and various new mandated disclosures to mortgage borrowers. |
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| Apply the same leverage and risk based capital requirements that apply to insured depository institutions to holding companies. |
| Permit national and state banks to establish de novo interstate branches at any location where a bank based in that state could establish a branch, and require that bank holding companies and banks be well-capitalized and well managed in order to acquire banks located outside their home state. |
| Impose new limits on affiliated transactions and cause derivative transactions to be subject to lending limits. |
| Implement corporate governance revisions, including with regard to executive compensation and proxy access to shareholders that apply to all public companies not just financial institutions. |
Many aspects of the Dodd-Frank Act are subject to rulemaking and will take effect over several years, and their impact on FSB or the financial industry is difficult to predict before such regulations are adopted. However, there is a significant possibility that the Dodd-Frank Act will, in the long run, increase regulatory burden, compliance costs, and interest expense for community banks.
Small Business Jobs and Credit Act of 2010
In July 2010, the U.S. Congress passed the Small Business Jobs and Credit Act of 2010, which includes as a part thereof, the establishment of a $30 billion Small Business Lending Fund (SBLF). The SBLF is a fund created by Congress to be used by the Treasury to make preferred stock investments in banks and bank holding companies that are not on the FDICs troubled bank list to stimulate small business lending. Eligible banks and holding companies with less than $1 billion in assets can receive an investment totaling up to 3% of the institutions risk-weighted assets. The size of the investment can be increased to 5% of risk-weighted assets for institutions under $500 million in total assets. The Treasurys guidelines related to the SBLF permit participants in the CPP to refinance securities issued to the Treasury under the CPP. However, CPP investments would be required to be paid in full since simultaneous participation in the CPP and the SBLF is not permissible. Dividends will be payable quarterly on the preferred stock issued to the Treasury under the SBLF, but unlike dividends owed on preferred stock issued to the Treasury under the CPP, dividends payable on the preferred stock issued under the SBLF will be non-cumulative, meaning that the issuer can miss a regular dividend payment and not have to subsequently make the payment before it pays the next quarterly dividend. Accordingly, the preferred stock issued under the SBLF will qualify for Tier 1 capital treatment under the more stringent capital standards imposed under the Dodd-Frank Act. Although dividends on the preferred stock are non-cumulative, the failure to pay dividends causes certain consequences including prohibitions on repurchasing shares of the issuers stock or paying dividends on shares of the issuers stock that are pari passu or junior to the shares issued to the Treasury under the SBLF.
The initial dividend rate on the preferred stock issued under the SBLF program will be 5% but is subject to a reduction to as low as 1% during a participants first years after the investment depending on the amount of increase in the institutions small business lending following its issuance of the preferred stock to the Treasury. After the initial four-and-a half year period the rate will increase to 9%. Under the SBLF, small business lending means lending as defined by and reported in an eligible institutions quarterly call report, where each loan comprising such lending is one of the following types: (i) commercial and industrial loans; (ii) owner-occupied nonfarm, nonresidential real estate loans; (iii) loans to finance agricultural production and other loans to farmers; and (iv) loans secured by farmland. Loans greater than $10 million or to businesses with more than $50 million in revenue are excluded. If any part of the loan is guaranteed by a U.S. government agency or enterprise, the guaranteed portion is subtracted from the loan amounts.
Jumpstart Our Business Startups Act of 2012
The Jumpstart Our Business Startups Act (the JOBS Act) increased the threshold under which a bank or bank holding company may terminate registration of a security under the Securities Exchange Act of 1934, as amended (Exchange Act) to 1,200 shareholders of record from 300. The JOBS Act also raised the threshold requiring companies to register to 2,000 shareholders from 500. Since the JOBS Act was signed, numerous banks or bank holding companies have filed to deregister their common stock.
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FDIC Insurance Premiums
FSB is required to pay quarterly FDIC deposit insurance assessments to the DIF. The FDIC merged the Bank Insurance Fund (BIF) and the Savings Association Insurance Fund (SAIF) to form the DIF on March 31, 2006, in accordance with the Federal Deposit Insurance Reform Act of 2005. The FDIC maintains the DIF by assessing depository institutions an insurance premium. The amount each institution is assessed is based upon statutory factors that include the balance of insured deposits as well as the degree of risk the institution poses to the insurance fund. The FDIC uses a risk-based premium system that assesses higher rates on those institutions that pose greater risks to the DIF.
Effective April 1, 2009, the FDIC revised its risk-based assessment system to adjust the risk-based calculation of an institutions unsecured debt, secured liabilities and brokered deposits. On November 12, 2009, the FDIC announced a final rule to increase of 3 basis points the deposit assessment base rate, beginning January 1, 2011. Additional increases in premiums will impact FFNs earnings adversely. Depending on any future losses that the FDIC insurance fund may suffer due to failed institutions, there can be no assurance that there will not be additional significant premium increases in order to replenish the fund.
Under the FDIA, insurance of deposits may be terminated by the FDIC upon a finding that the institution has engaged in unsafe and unsound practices, is in an unsafe or unsound condition to continue operations or has violated any applicable law, regulation, rule, order or condition imposed by a federal bank regulatory agency.
Effects of Governmental Policies
FSBs earnings are affected by the difference between the interest earned by FSB on its loans and investments and the interest paid by FSB on its deposits or other borrowings. The yields on its assets and the rates paid on its liabilities are sensitive to changes in prevailing market rates of interest. Thus, the earnings and growth of FSB are influenced by general economic conditions, fiscal policies of the federal government, and the policies of regulatory agencies, particularly the Federal Reserve, which establishes national monetary policy. The nature and impact of any future changes in fiscal or monetary policies cannot be predicted.
Commercial banks are affected by the credit policy of various regulatory authorities, including the Federal Reserve. An important function of the Federal Reserve is to regulate the national supply of bank credit. Among the instruments of monetary policy used by the Federal Reserve to implement these objectives are open market operations in U.S. Government securities, changes in reserve requirements on bank deposits, changes in the discount rate on bank borrowings and limitations on interest rates that banks may pay on time and savings deposits. The Federal Reserve uses these means in varying combinations to influence overall growth of bank loans, investments and deposits, and also to affect interest rates charged on loans, received on investments or paid for deposits.
The monetary and fiscal policies of regulatory authorities, including the Federal Reserve, also affect the banking industry. Through changes in the reserve requirements against bank deposits, open market operations in U.S. Government securities and changes in the discount rate on bank borrowings, the Federal Reserve influences the cost and availability of funds obtained for lending and investing. No prediction can be made with respect to possible future changes in interest rates, deposit levels or loan demand or with respect to the impact of such changes on the business and earnings of FSB.
From time to time, legislation is enacted which has the effect of increasing the cost of doing business, limiting or expanding permissible activities, or affecting the competitive balance between banks and other financial institutions. With the enactments of EESA, AARA, and the Dodd-Frank Act and the significant amount of regulations that are to come from the passage of this legislation, the nature and extent of the future legislative and regulatory changes affecting financial institutions and the resulting impact on those institutions is very unpredictable at this time. Bills are currently pending which may have the effect of changing the way FSB conducts its business.
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FFNs MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Our discussion and analysis of earnings and related financial data are presented herein to assist investors in understanding the financial condition of the Corporation at September 30, 2013, December 31, 2012 and December 31, 2011, and the results of operations for the three and nine month periods ending September 30, 2013 and 2012, and years ended December 31, 2012 and 2011. The results of operations as of and for the three and nine months ending September 30, 2013, are not necessarily indicative of the results that may be expected for the twelve months ended December 31, 2013 or any future period. This discussion should be read in conjunction with the consolidated financial statements and related footnotes of the Corporation presented with this joint proxy statement/prospectus. All amounts are in thousands, except per share data or unless otherwise indicated.
Critical Accounting Policies
The accounting and reporting policies of the Corporation are in accordance with accounting principles generally accepted in the United States of America and conform to general practices within the banking industry. To prepare financial statements in conformity with accounting principles generally accepted in the United States of America, management makes estimates and assumptions based on available information. These estimates and assumptions affect the amounts reported in the financial statements and the disclosures provided, and actual results could differ. The allowance for loan losses and fair value of financial instruments are particularly subject to change.
Our accounting policies are integral to understanding the results reported. Accounting policies are described in detail in Note 1 of the notes to the consolidated financial statements. The critical accounting policies require our judgment to ascertain the valuation of assets, liabilities, commitments and contingencies. We have established policies and control procedures that are intended to ensure valuation methods are well controlled and applied consistently from period to period. In addition, the policies and procedures are intended to ensure that the process for changing methodologies occurs in an appropriate manner. The following is a brief summary of the more significant policies.
Principles of Consolidation
The consolidated financial statements include Franklin Financial Network, Inc. and its wholly owned subsidiaries, Franklin Synergy Bank and Banc Compliance Group, Inc., together referred to as the Corporation. Intercompany transactions and balances are eliminated in consolidation. The interim condensed consolidated financial statements included herein are unaudited but reflect all adjustments which, in the opinion of management, are necessary for a fair presentation of the consolidated financial position and results of operations for the interim periods presented. The results of operations for the three months and the nine months ended September 30, 2013 and 2012, are not necessarily indicative of the results to be expected for the full year.
Allowance for Loan Losses
The allowance for loan losses is a valuation allowance for probable incurred credit losses. Loan losses are charged against the allowance when management believes the uncollectibility of a loan balance is confirmed. Subsequent recoveries, if any, are credited to the allowance. Management estimates the allowance balance required using past loan loss experience, the nature and volume of the portfolio, information about specific borrower situations and estimated collateral values, economic conditions, and other factors. Allocations of the allowance may be made for specific loans, but the entire allowance is available for any loan that, in managements judgment, should be charged off.
The allowance consists of specific and general components. The specific component relates to loans that are individually classified as impaired. A loan is impaired when, based on current information and events, it is probable that the Corporation will be unable to collect all amounts due according to the contractual terms of the loan agreement. Loans for which the terms have been modified resulting in a concession, and for which the borrower is experiencing financial difficulties, are considered troubled debt restructurings and classified as impaired.
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Factors considered by management in determining impairment include payment status, collateral value, and the probability of collecting scheduled principal and interest payments when due. Loans that experience insignificant payment delays and payment shortfalls generally are not classified as impaired. Management determines the significance of payment delays and payment shortfalls on case-by-case basis, taking into consideration all of the circumstances surrounding the loan and the borrower, including the length of the delay, the reasons for the delay, the borrowers prior payment record, and the amount of the shortfall in relation to the principal and interest owed.
All loans classified by management as substandard or worse are individually evaluated for impairment. If a loan is impaired, a portion of the allowance is allocated so that the loan is reported, net, at the present value of estimated future cash flows using the loans existing rate or at the fair value of collateral if repayment is expected solely from the collateral.
Troubled debt restructurings are separately identified for impairment disclosures and are measured at the present value of estimated future cash flows using the loans effective rate at inception. If a troubled debt restructuring is considered to be a collateral dependent loan, the loan is reported, net, at the fair value of the collateral. For troubled debt restructurings that subsequently default, the Corporation determines the amount of reserve in accordance with the accounting policy for the allowance for loan losses.
The general component covers non-impaired loans and is based on historical loss experience adjusted for current factors. The historical loss experience is determined by portfolio segment and is based on a combination of the Banks loss history and loss history from the Banks peer group over the past three years. This actual loss experience is supplemented with other economic factors based on the risks present for each portfolio segment. These economic factors include consideration of the following: levels of and trends in delinquencies and impaired loans; levels of and trends in charge-offs and recoveries; trends in volume and terms of loans; effects of any changes in risk selection and underwriting standards; other changes in lending policies, procedures, and practices; experience, ability, and depth of lending management and other relevant staff; national and local economic trends and conditions; industry conditions; and effects of changes in credit concentrations.
Fair Value of Financial Instruments
Fair values of financial instruments are estimated using relevant market information and other assumptions, as more fully disclosed in a separate note. Fair value estimates involve uncertainties and matters of significant judgment regarding interest rates, credit risk, prepayments, and other factors, especially in the absence of broad markets for particular items. Changes in assumptions or in market conditions could significantly affect the estimates.
Mortgage Banking Income
Gains and losses on sales of mortgage loans are based on the difference between the selling price and the carrying value of the related loan sold. Loans originated and intended for sale in the secondary market are carried at the lower of aggregate cost or fair value, as determined by outstanding commitments from investors. Net unrealized losses, if any, are recorded as a valuation allowance and charged to earnings. Certain loans held for sale are sold with servicing rights retained. The carrying value of loans sold with retained servicing is reduced by the amount allocated to the servicing right.
These realized gains and losses, along with certain fees and changes in the fair value of mortgage banking derivatives, are included in net gains on sales of loans.
Mortgage Servicing Rights
When loans are sold with servicing retained, servicing rights are initially recorded at fair value with the income statement effect recorded in gain on sale of loans. Fair value is based on market prices for comparable servicing contracts. All classes of servicing assets are subsequently measured using the amortization method which requires servicing rights to be amortized into non-interest income in proportion to, and over the period of, the estimated future net servicing income of the underlying loans.
Servicing assets are evaluated for impairment based upon the fair value of the rights as compared to carrying amount. Impairment is determined by stratifying rights into groupings based on predominant risk characteristics, such as interest rate, loan type and investor type. Impairment is recognized through a valuation
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allowance for an individual grouping, to the extent that fair value is less than the carrying amount. If the Corporation later determines that all or a portion of the impairment no longer exists for a particular grouping, a reduction of the allowance may be recorded as an increase to income. Changes in valuation allowances are reported with loan servicing fees on the income statement. The fair values of servicing rights are subject to significant fluctuations as a result of changes in estimated and actual prepayment speeds and default rates and losses.
Servicing fee income, which is reported on the income statement as loan servicing fees, is recorded for fees earned for servicing loans. The fees are based on a contractual percentage of the outstanding principal; or a fixed amount per loan and are recorded as income when earned. The amortization of mortgage servicing rights is netted against mortgage loan servicing fee income.
Income Taxes
Income tax expense or benefit is the total of the current year income tax due or refundable and the change in deferred tax assets and liabilities. Deferred tax assets and liabilities are the expected future tax amounts for the temporary differences between carrying amounts and tax bases of assets and liabilities, computed using enacted tax rates. A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized.
A tax position is recognized as a benefit only if it is more likely than not that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the more likely than not test, no tax benefit is recorded.
The Corporation recognizes interest and/or penalties related to income tax matters in income tax expense.
COMPARISON OF RESULTS OF OPERATIONS FOR THE THREE AND NINE MONTH PERIODS ENDING SEPTEMBER 30, 2013 AND 2012 AND YEARS ENDED DECEMBER 31, 2012 AND 2011
Net Income
FFN reported $1,010 and $3,158 in net income for the three and nine month periods ended September 30, 2013, respectively, and $1,012 and $2,594 for the similar periods in 2012. After the payment of preferred dividends on the senior preferred stock issued to the Treasury pursuant to Small Business Lending Fund (SBLF), our net earnings available to common shareholders for the three and nine month periods ended September 30, 2013 was $985 and $3,075, respectively, compared to $939 and $2,184 for the similar periods in 2012. The primary reason for the increase in net earnings available to common shareholders for the nine month period was increased interest income on loans offset somewhat by an increase in salaries expense. Our net earnings available to common shareholders for the years ended December 31, 2012 and 2011 was $3,682 and $2,154, respectively. The primary reason for the increase between these two periods was also increased interest income on loans as well as increased gains on the sale of mortgage loans. This is reflective of the loan growth experienced by the bank during these periods. This and other factors contributing to our earnings results for the periods indicated are discussed below.
Net Interest Income/Margin
Net interest income consists of interest income generated by earning assets, less interest expense.
Comparison of net interest income for the three months ended September 30, 2013 and 2012
Net interest income increased $1,421, or 35.8% to $5,385 during the three months ended September 30, 2013 compared to $3,964 for the same period in 2012. The increase was the result of a $934 increase in interest income on loans plus a $423 increase in interest income on securities.
Interest-earning assets averaged $614,222 during the three months ended September 30, 2013 as compared to $510,766 for the same period in 2012, an increase of $103,456, or 20.3%. This increase was the result of growth primarily in both loans and securities held to maturity. The yield on average interest-earning assets increased 23 basis points (bps) to 4.10% during the three months ended September 30, 2013 compared to 3.87% for the same period in 2012. This favorable increase is primarily due to growth in the loan portfolio, which averaged 60.1% of total interest-earning assets for the three months ended September 30, 2013, compared to 56.2% for the same period
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in 2012. The combined net effects of the $103,456 increase in average interest-earning assets and the 23 bps increase in yields on average interest-earning assets resulted in the $1,358 increase in interest income between the two three month periods.
Interest-bearing liabilities averaged $522,695 during the three months ended September 30, 2013 as compared to $429,041 for the same period in 2012, an increase of $93,654, or 21.8%. Total average interest-bearing deposits grew $67,521, including a $9,617 increase in average brokered CDs outstanding. Rapid growth in the loan portfolio also resulted in an increase in average Federal Home Loan Bank advances of $14,459 and average Federal funds purchased of $12,411. The cost of average interest-bearing liabilities decreased 22 bps to 0.72% during the three months ended September 30, 2013, compared to 0.94% for 2012. This favorable decline was primarily due to decreases in the rates paid on money market accounts and time deposits, including a 48 bps decrease on the average yield on brokered CDs. The effect of the $93,654 increase in average interest-bearing liabilities offset by the 22 bps decrease in cost of average interest-bearing liabilities resulted in the $63 decrease in interest expense between the two three month periods.
Comparison of net interest income for the nine months ended September 30, 2013 and 2012
Net interest income increased $2,987, or 25.6% to $14,657 during the nine months ended September 30, 2013 compared to $11,670 for the same period in 2012. The increase was the result of a $2,835 increase in interest income, primarily from interest on loans, plus by a $152 decrease in interest expense.
Interest-earning assets averaged $592,991 during the nine months ended September 30, 2013 as compared to $498,123 for the same period in 2012, an increase of $94,868, or 19.0%. This increase was due primarily to average loan growth between the periods of 27.7%. The yield on average interest-earning assets increased 1 basis point to 3.96% during the nine months ended September 30, 2013 compared to 3.95% for the same period in 2012. Despite the decrease in the average yields on the loan and investment securities portfolios between these periods, the yield on average assets remained fairly stable due to an increase in the growth of the loan portfolio, which represented 57.0% of the total interest-earning assets for the nine months ended September 30, 2013, compared to 53.1% for the same period in 2012. The effect of the $94,868 increase in average interest-earning assets offset by declining yields on loans and securities resulted in the $2,835 increase in interest income between the two nine month periods.
Interest-bearing liabilities averaged $506,179 during the nine months ended September 30, 2013 as compared to $423,003 for the same period in 2012, an increase of $83,176, or 19.7%. Total average interest-bearing deposits grew $68,467, including a $2,611 increase in average brokered CDs outstanding. Rapid growth in the loan portfolio also resulted in an increase in average Federal Home Loan Bank advances of $9,270 and average Federal funds purchased of $5,492. The cost of average interest-bearing liabilities decreased 20 bps to 0.76% during the nine months ended September 30, 2013, compared to 0.96% for 2012. This favorable decline was primarily due to decreases in the rates paid on money market accounts and time deposits, including a 46 bps decrease on the average yield on brokered CDs. The effect of the $83,176 increase in average interest-bearing liabilities offset by the 20 bps decrease in cost of average interest-bearing liabilities resulted in the $152 decrease in interest expense between the two nine month periods.
Comparison of net interest income for the years ended December 31, 2012 and 2011
Net interest income increased $3,820, or 31.5% to $15,956 during the year ended December 31, 2012 compared to $12,136 for the same period in 2011. The increase was the result of a $3,912 increase in interest income, primarily from interest on loans, offset by a $92 increase in interest expense.
Interest-earning assets averaged $503,215 during the year ended December 31, 2012 as compared to $361,587 for the same period in 2011, an increase of $141,628, or 39.2%. This increase was due primarily to average loan growth during 2012 of 32.2% and an increase in the average investment securities portfolio of 49.2%. The yield on average interest-earning assets decreased 47 bps to 3.98% during the year ended December 31, 2012 compared to 4.45% for the same period in 2011. A 15 bps increase in the yield on loans was the result of growth of more than 50% in both real estate construction loans and commercial loans in 2012 combined with increasing yields on these portfolios due, in part, to shorter maturities and faster recognition of origination fee income. This 15 bps increase was, however, more than offset by a 117 bps decrease in the yield on the total investment securities
123
portfolio. The effect of the $141,628 increase in average interest-earning assets offset somewhat by the 47 bps decrease in yields on average interest-earning assets resulted in the $3,912 increase in interest income between the two years.
Interest-bearing liabilities averaged $425,786 during the year ended December 31, 2012 as compared to $309,556 for the same period in 2011, an increase of $116,230, or 37.5%. Growth in total average interest-bearing deposits of $107,975 accounts for most of this increase. The cost of average interest-bearing liabilities decreased 33 bps to 0.95% during the year ended December 31, 2012, compared to 1.28% for 2011. This favorable decline was primarily due to decreases in the rates paid on money market accounts and time deposits. The effect of the $116,230 increase in average interest-bearing liabilities offset somewhat by the 33 bps decrease in cost of average interest-bearing liabilities resulted in the $92 increase in interest expense between the two years.
See the tables Average Balances Yields & Rates, and Analysis of Changes in Interest Income and Expenses below.
Average Balances (7) Yields & Rates
(dollars are in thousands)
Three Months Ended September 30, | ||||||||||||||||||||||||
2013 | 2012 | |||||||||||||||||||||||
Average
Balance |
Interest
Inc /Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc /Exp |
Average
Yield/Rate |
|||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||
Loans (1) |
$ | 369,112 | $ | 5,186 | 5.57 | % | $ | 287,226 | $ | 4,252 | 5.87 | % | ||||||||||||
Securities available for sale (6) |
189,255 | 847 | 1.79 | % | 185,678 | 554 | 1.19 | % | ||||||||||||||||
Securities held to maturity |
43,169 | 268 | 2.49 | % | 19,595 | 138 | 2.82 | % | ||||||||||||||||
Federal funds sold and other (2) |
12,686 | 37 | 1.14 | % | 18,267 | 36 | 0.77 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 614,222 | $ | 6,338 | 4.10 | % | $ | 510,766 | $ | 4,980 | 3.87 | % | ||||||||||||
Allowance for loan losses |
(4,318 | ) | (3,443 | ) | ||||||||||||||||||||
All other assets |
25,203 | 17,005 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL ASSETS |
$ | 635,107 | $ | 524,328 | ||||||||||||||||||||
LIABILITIES & SHAREHOLDERS EQUITY |
||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||
Interest checking |
$ | 93,114 | $ | 67 | 0.29 | % | $ | 71,576 | $ | 59 | 0.33 | % | ||||||||||||
Money market |
215,736 | 415 | 0.76 | % | 198,645 | 500 | 1.00 | % | ||||||||||||||||
Savings |
14,500 | 18 | 0.49 | % | 9,597 | 15 | 0.62 | % | ||||||||||||||||
Time deposits |
151,242 | 374 | 0.98 | % | 127,253 | 402 | 1.25 | % | ||||||||||||||||
Federal Home Loan Bank advances |
25,337 | 29 | 0.45 | % | 12,826 | 22 | 0.68 | % | ||||||||||||||||
Federal funds purchased and other (3) |
22,766 | 50 | 0.88 | % | 9,144 | 18 | 0.79 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 522,695 | $ | 953 | 0.72 | % | $ | 429,041 | $ | 1,016 | 0.94 | % | ||||||||||||
Demand deposits |
59,643 | 43,402 | ||||||||||||||||||||||
Other liabilities |
1,868 | 2,413 | ||||||||||||||||||||||
Total shareholders equity |
50,901 | 49,472 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS EQUITY |
$ | 635,107 | $ | 524,328 | ||||||||||||||||||||
NET INTEREST SPREAD (4) |
3.38 | % | 2.93 | % | ||||||||||||||||||||
NET INTEREST INCOME |
$ | 5,385 | $ | 3,964 | ||||||||||||||||||||
NET INTEREST MARGIN (5) |
3.48 | % | 3.08 | % |
(1) | Loan balances include both loans held in the Banks portfolio and mortgage loans held for sale and are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Includes Federal Funds sold, capital stock in the Federal Reserve Bank and Federal Home Loan Bank, and interest-bearing deposits at the Federal Reserve Bank. |
(3) | Includes repurchase agreements. |
124
(4) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(5) | Represents net interest income (annualized) divided by total average earning assets. |
(6) | Interest income and rates exclude the effects of a tax equivalent adjustment to adjust tax exempt investment income on tax exempt investment securities to a fully taxable basis due to immateriality. |
(7) | Averages balances are average daily balances. |
125
Average Balances (7) Yields & Rates
(dollars are in thousands)
Nine Months Ended September 30, | ||||||||||||||||||||||||
2013 | 2012 | |||||||||||||||||||||||
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
|||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||
Loans (1) |
$ | 337,810 | $ | 14,434 | 5.71 | % | $ | 264,526 | $ | 11,704 | 5.92 | % | ||||||||||||
Securities available for sale (6) |
191,982 | 2,170 | 1.51 | % | 194,590 | 2,603 | 1.78 | % | ||||||||||||||||
Securities held to maturity |
42,062 | 821 | 2.60 | % | 12,624 | 291 | 3.07 | % | ||||||||||||||||
Federal funds sold and other (2) |
21,137 | 126 | 0.79 | % | 26,383 | 118 | 0.60 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 592,991 | $ | 17,551 | 3.96 | % | $ | 498,123 | 14,716 | 3.95 | % | |||||||||||||
Allowance for loan losses |
(4,178 | ) | (3,296 | ) | ||||||||||||||||||||
All other assets |
23,496 | 16,361 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL ASSETS |
$ | 612,309 | $ | 511,188 | ||||||||||||||||||||
LIABILITIES & SHAREHOLDERS EQUITY |
||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||
Interest checking |
$ | 116,067 | $ | 283 | 0.33 | % | $ | 97,280 | $ | 252 | 0.35 | % | ||||||||||||
Money market |
215,939 | 1,313 | 0.81 | % | 185,468 | 1,436 | 1.04 | % | ||||||||||||||||
Savings |
12,528 | 46 | 0.49 | % | 8,463 | 43 | 0.68 | % | ||||||||||||||||
Time deposits |
132,721 | 1,091 | 1.10 | % | 117,577 | 1,219 | 1.39 | % | ||||||||||||||||
Federal Home Loan Bank advances |
14,337 | 67 | 0.62 | % | 8,845 | 65 | 0.98 | % | ||||||||||||||||
Federal funds purchased and other (3) |
14,587 | 94 | 0.86 | % | 5,370 | 31 | 0.78 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 506,179 | $ | 2,894 | 0.76 | % | $ | 423,003 | $ | 3,046 | 0.96 | % | ||||||||||||
Demand deposits |
52,707 | 37,702 | ||||||||||||||||||||||
Other liabilities |
1,849 | 1,682 | ||||||||||||||||||||||
Total shareholders equity |
51,574 | 48,801 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS EQUITY |
$ | 612,309 | $ | 511,188 | ||||||||||||||||||||
NET INTEREST SPREAD (4) |
3.19 | % | 2.99 | % | ||||||||||||||||||||
NET INTEREST INCOME |
$ | 14,657 | $ | 11,670 | ||||||||||||||||||||
NET INTEREST MARGIN (5) |
3.30 | % | 3.13 | % |
(1) | Loan balances include both loans held in the Banks portfolio and mortgage loans held for sale and are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Includes Federal Funds sold, capital stock in the Federal Reserve Bank and Federal Home Loan Bank, and interest-bearing deposits at the Federal Reserve Bank. |
(3) | Includes repurchase agreements. |
(4) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(5) | Represents net interest income (annualized) divided by total average earning assets. |
(6) | Interest income and rates exclude the effects of a tax equivalent adjustment to adjust tax exempt investment income on tax exempt investment securities to a fully taxable basis due to immateriality. |
(7) | Averages balances are average daily balances. |
126
Average Balances (7) Yields & Rates
(dollars are in thousands)
Years Ended December 31, | ||||||||||||||||||||||||||||||||||||
2012 | 2011 | 2010 | ||||||||||||||||||||||||||||||||||
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
||||||||||||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||||||||||||||
Loans (1) |
$ | 274,815 | $ | 16,262 | 5.92 | % | $ | 207,936 | $ | 12,001 | 5.77 | % | $ | 180,201 | $ | 10,169 | 5.64 | % | ||||||||||||||||||
Securities available for sale(6) |
186,361 | 3,092 | 1.66 | % | 127,423 | 3,696 | 2.90 | % | 80,704 | 2,401 | 2.97 | % | ||||||||||||||||||||||||
Securities held to maturity |
15,658 | 479 | 3.06 | % | 7,953 | 277 | 3.48 | % | 9,672 | 332 | 3.43 | % | ||||||||||||||||||||||||
Federal funds sold and other(2) |
26,381 | 171 | 0.65 | % | 18,275 | 118 | 0.64 | % | 16,062 | 106 | 0.66 | % | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 503,215 | $ | 20,004 | 3.98 | % | $ | 361,587 | $ | 16,092 | 4.45 | % | $ | 286,639 | $ | 13,008 | 4.54 | % | ||||||||||||||||||
Allowance for loan losses |
(3,426 | ) | (3,217 | ) | (2,845 | ) | ||||||||||||||||||||||||||||||
All other assets |
17,302 | 12,810 | 11,429 | |||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
TOTAL ASSETS |
$ | 517,091 | $ | 371,180 | $ | 295,223 | ||||||||||||||||||||||||||||||
LIABILITIES & SHAREHOLDERS EQUITY |
||||||||||||||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||||||||||||||
Interest checking |
$ | 87,972 | $ | 299 | 0.34 | % | $ | 59,961 | $ | 230 | 0.38 | % | $ | 60,890 | $ | 298 | 0.49 | % | ||||||||||||||||||
Money market |
190,731 | 1,935 | 1.01 | % | 112,349 | 1,390 | 1.24 | % | 24,310 | 347 | 1.43 | % | ||||||||||||||||||||||||
Savings |
8,993 | 58 | 0.64 | % | 6,221 | 53 | 0.85 | % | 5,152 | 58 | 1.13 | % | ||||||||||||||||||||||||
Time deposits |
122,691 | 1,625 | 1.32 | % | 123,881 | 2,192 | 1.77 | % | 150,436 | 3,289 | 2.19 | % | ||||||||||||||||||||||||
Federal Home Loan Bank advances |
9,914 | 88 | 0.88 | % | 3,212 | 58 | 1.79 | % | 2,500 | 52 | 2.07 | % | ||||||||||||||||||||||||
Federal funds purchased and other (3) |
5,485 | 43 | 0.78 | % | 3,932 | 33 | 0.83 | % | 6,029 | 45 | 0.75 | % | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 425,786 | $ | 4,048 | 0.95 | % | $ | 309,556 | $ | 3,956 | 1.28 | % | $ | 249,317 | $ | 4,089 | 1.64 | % | ||||||||||||||||||
Demand deposits |
39,746 | 22,179 | 15,125 | |||||||||||||||||||||||||||||||||
Other liabilities |
2,019 | 1,308 | 1,717 | |||||||||||||||||||||||||||||||||
Total shareholders equity |
49,540 | 38,137 | 29,064 | |||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
TOTAL LIABILITIES AND SHAREHOLDERS EQUITY |
$ | 517,091 | $ | 371,180 | $ | 295,223 | ||||||||||||||||||||||||||||||
NET INTEREST SPREAD (4) |
3.02 | % | 3.17 | % | 2.90 | % | ||||||||||||||||||||||||||||||
NET INTEREST INCOME |
$ | 15,956 | $ | 12,136 | $ | 8,919 | ||||||||||||||||||||||||||||||
NET INTEREST MARGIN (5) |
3.17 | % | 3.36 | % | 3.11 | % |
(1) | Loan balances include both loans held in the Banks portfolio and mortgage loans held for sale and are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Includes Federal Funds sold, capital stock in the Federal Reserve Bank and Federal Home Loan Bank, and interest-bearing deposits at the Federal Reserve Bank. |
(3) | Includes repurchase agreements. |
(4) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(5) | Represents net interest income (annualized) divided by total average earning assets. |
(6) | Interest income and rates exclude the effects of a tax equivalent adjustment to adjust tax exempt investment income on tax exempt investment securities to a fully taxable basis due to immateriality. |
(7) | Averages balances are average daily balances. |
The tables below detail the components of the changes in net interest income for the periods indicated. For each major category of interest-earning assets and interest-bearing liabilities, information is provided with respect to changes due to average volume and changes due to rates, with the changes in both volumes and rates allocated to these two categories based on the proportionate absolute changes in each category.
127
Analysis of Changes in Interest Income and Expenses
Net change three month periods ended
Sep 30, 2013 versus Sep 30, 2012 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 1,212 | $ | (278 | ) | $ | 934 | |||||
Securities available for sale |
11 | 282 | 293 | |||||||||
Securities held to maturity |
166 | (36 | ) | 130 | ||||||||
Federal funds sold and other |
(11 | ) | 12 | 1 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 1,378 | $ | (20 | ) | $ | 1,358 | |||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 18 | $ | (10 | ) | $ | 8 | |||||
Money market accounts |
43 | (128 | ) | (85 | ) | |||||||
Savings |
7 | (4 | ) | 3 | ||||||||
Time deposits |
75 | (103 | ) | (28 | ) | |||||||
Federal Home Loan Bank advances |
22 | (15 | ) | 7 | ||||||||
Other borrowed funds |
27 | 5 | 32 | |||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | 192 | $ | (255 | ) | $ | (63 | ) | ||||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 1,186 | $ | 235 | $ | 1,421 | ||||||
|
|
|
|
|
|
|||||||
Net change nine month periods ended
Sep 30, 2013 versus Sep 30, 2012 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 3,243 | $ | (513 | ) | $ | 2,730 | |||||
Securities available for sale |
(35 | ) | (398 | ) | (433 | ) | ||||||
Securities held to maturity |
679 | (149 | ) | 530 | ||||||||
Federal funds sold and other |
(24 | ) | 32 | 8 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 3,863 | $ | (1,028 | ) | $ | 2,835 | |||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 49 | $ | (18 | ) | $ | 31 | |||||
Money market accounts |
236 | (359 | ) | (123 | ) | |||||||
Savings |
21 | (18 | ) | 3 | ||||||||
Time deposits |
157 | (285 | ) | (128 | ) | |||||||
Federal Home Loan Bank advances |
40 | (38 | ) | 2 | ||||||||
Other borrowed funds |
54 | 9 | 63 | |||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | 557 | $ | (709 | ) | $ | (152 | ) | ||||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 3,306 | $ | (319 | ) | $ | 2,987 | |||||
|
|
|
|
|
|
128
Net change years ended
December 31, 2012 versus December 31, 2011 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 3,860 | $ | 402 | $ | 4,262 | ||||||
Securities available for sale |
1,710 | (2,314 | ) | (604 | ) | |||||||
Securities held to maturity |
268 | (66 | ) | 202 | ||||||||
Federal funds sold and other |
52 | (0 | ) | 52 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 5,890 | $ | (1,978 | ) | $ | 3,912 | |||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 108 | $ | (39 | ) | $ | 69 | |||||
Money market accounts |
970 | (425 | ) | 545 | ||||||||
Savings |
23 | (18 | ) | 5 | ||||||||
Time deposits |
(21 | ) | (546 | ) | (567 | ) | ||||||
Federal Home Loan Bank advances |
120 | (90 | ) | 30 | ||||||||
Other borrowed funds |
13 | (3 | ) | 10 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | 1,213 | $ | (1,121 | ) | $ | 92 | |||||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 4,677 | $ | (857 | ) | $ | 3,820 | |||||
|
|
|
|
|
|
|||||||
Net change years ended
December 31, 2011 versus December 31, 2010 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 1,565 | $ | 267 | $ | 1,832 | ||||||
Securities available for sale |
1,390 | (95 | ) | 1,295 | ||||||||
Securities held to maturity |
(59 | ) | 4 | (55 | ) | |||||||
Federal funds sold and other |
15 | (3 | ) | 12 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 2,911 | $ | 173 | $ | 3,084 | ||||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | (5 | ) | $ | (63 | ) | $ | (68 | ) | |||
Money market accounts |
1,325 | (282 | ) | 1,043 | ||||||||
Savings |
13 | (18 | ) | (5 | ) | |||||||
Time deposits |
(581 | ) | (516 | ) | (1,097 | ) | ||||||
Federal Home Loan Bank advances |
15 | (9 | ) | 6 | ||||||||
Other borrowed funds |
(16 | ) | 4 | (12 | ) | |||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | 751 | $ | (884 | ) | $ | (133 | ) | ||||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 2,160 | $ | 1,057 | $ | 3,217 | ||||||
|
|
|
|
|
|
Provision for Loan Losses
The provision for loan losses represents a charge to earnings necessary to establish an allowance for loan losses that, in our managements evaluation, should be adequate to provide coverage for probable losses incurred in the loan portfolio. The allowance is increased by the provision for loan losses and is decreased by charge-offs, net of recoveries on prior loan charge-offs.
The provision for loan losses was $457 and $1,316 for the nine months ended September 30, 2013 and 2012, respectively. The lower provision in 2013 compared to the same period in 2012 is due primarily to fewer charge-offs combined with recoveries received on previously charged-off residential real estate loans that resulted in net charge-offs of $8 in 2013 compared to $985 for the same period in 2012. A decrease in the general reserves as a percentage of total loans resulting from improving economic conditions has also contributed to the lower provision. The provision for loan losses for the year ended December 31, 2012 was $1,548 against $978 in net charge offs, primarily from $575 in charge-offs on commercial real estate loans and $443 on residential real estate loans.
129
Provision for loan losses was $680 for the year ended December 31, 2011, against $444 in net charge-offs. Nonperforming loans at September 30, 2013, totaled $2,621 compared to $2,677 at December 31, 2012, and $3,431 at December 31, 2011, representing 0.7%, 0.9% and 1.5% of total loans, respectively. Total loans past due more than 30 days was $2,836 at September 30, 2013, $2,638 at December 31, 2012, and $6,471 at December 31, 2011.
Non-Interest Income
Our non-interest income is composed of several components, some of which vary significantly between annual periods. The following is our non-interest income for the three and nine month periods ending September 30, 2013 and 2012, and for the years ended December 31, 2012 and 2011 (in thousands):
Three month period ending September 30, |
2013 | 2012 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Service charges on deposit accounts |
$ | 12 | $ | 11 | $ | 1 | 9 | % | ||||||||
Other service charges and fees |
270 | 288 | (18 | ) | (6.3 | %) | ||||||||||
Net gains sale of loans |
714 | 1,857 | (1,143 | ) | (61.6 | %) | ||||||||||
Loan servicing fees, net |
(19 | ) | (439 | ) | 420 | (95.7 | %) | |||||||||
Gain on sale of investment securities, net |
| 337 | (337 | ) | (100.0 | %) | ||||||||||
Investment services |
74 | 80 | (6 | ) | (7.5 | %) | ||||||||||
Compliance consulting fees |
124 | 118 | 6 | 5.1 | % | |||||||||||
Other |
171 | 50 | 121 | 242.0 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest income |
$ | 1,346 | $ | 2,302 | $ | (956 | ) | (41.5 | %) | |||||||
|
|
|
|
|
|
|
|
Nine month period ending September 30, |
2013 | 2012 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Service charges on deposit accounts |
$ | 39 | $ | 35 | $ | 4 | 11.4 | % | ||||||||
Other service charges and fees |
868 | 680 | 188 | 27.6 | ||||||||||||
Net gains on sale of loans |
3,611 | 3,850 | (239 | ) | (6.2 | %) | ||||||||||
Loan servicing fees, net |
(317 | ) | (635 | ) | 318 | (50.1 | %) | |||||||||
Gain on sale of investment securities, net |
78 | 798 | (720 | ) | (90.2 | %) | ||||||||||
Investment services |
298 | 335 | (37 | ) | (11.0 | %) | ||||||||||
Compliance consulting fees |
457 | 381 | 76 | 19.9 | % | |||||||||||
Other |
398 | 214 | 184 | 86.0 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest income |
$ | 5,432 | $ | 5,658 | $ | (226 | ) | (4.0 | %) | |||||||
|
|
|
|
|
|
|
|
Years ending December 31, |
2012 | 2011 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Service charges on deposit accounts |
$ | 48 | $ | 34 | $ | 14 | 41.2 | % | ||||||||
Other service charges and fees |
987 | 615 | 372 | 60.5 | % | |||||||||||
Net gains on sale of loans |
5,550 | 2,687 | 2,863 | 106.6 | % | |||||||||||
Loan servicing fees, net |
(736 | ) | (332 | ) | (404 | ) | 121.7 | % | ||||||||
Gain on bank owned life insurance |
606 | | 606 | NM | ||||||||||||
Gain on sale of investment securities, net |
991 | 672 | 319 | 47.5 | % | |||||||||||
Investment services |
408 | 379 | 29 | 7.7 | % | |||||||||||
Compliance consulting fees |
513 | 291 | 222 | 76.3 | % | |||||||||||
Other |
278 | 114 | 164 | 143.9 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest income |
$ | 8,645 | $ | 4,460 | $ | 4,185 | 93.8 | % | ||||||||
|
|
|
|
|
|
|
|
NM Not meaningful
130
Other service charges and fees for the nine months ending September 30, 2013, were $868 compared to $680 for the same period in 2012, an increase of $188, or 27.6%. This increase was due primarily to an increase in fees associated with the origination of mortgage loans and an increase in ATM fee income. For the year ending December 31, 2012, other service charges and fees were $987 compared to $615 for the same period in 2011, an increase of $372 or 60.5% also due to an increase in fees related to the origination of mortgage loans and an increase in ATM fee income.
Net gains on the sale of loans include net gains realized from the sales of mortgage loans and Small Business Administration (SBA) loans. Net gains on the sale of mortgage loans are based, in part, on differences between the carrying value of loans being sold to third-party investors and the selling price. Also included are changes in the fair value of mortgage banking derivatives entered into by the Corporation to hedge the change in interest rates on loan commitments prior to their sale in the secondary market. Fluctuations in mortgage interest rates, changes in the demand for certain loans by investors, and whether servicing rights associated with the loans being sold are retained or released all affect the net gains on mortgage loan sales. In 2011, the Corporation made a strategic decision to begin originating SBA loans and subsequently selling the government-guaranteed portions of these loans to a third-party investor. The net gains for the three and nine months ending September 30, 2013, were $714 and $3,611, respectively, compared to $1,857 and $3,850 for the same periods in 2012, a decrease of $1,143, or 61.6%, and $239, or 6.2%, respectively. The decrease during these periods was primarily due to unfavorable changes in the fair value of the mortgage banking derivatives and smaller differences between the carrying value of the loans sold and the selling price. For the year ended December 31, 2012, net gains were $5,550 compared to $2,687 for the year ended December 30, 2011, an increase of $2,863, or 106.6%, due to primarily to higher loan production in 2012 combined with favorable changes in the fair value of the mortgage banking derivatives. Residential refinancing activity that began to surge during the second half of 2011 in response to historically low interest rates remained significant throughout 2012 and into 2013. Refinancing activity has decreased significantly in the second half of 2013. In addition, gains from the sale of SBA loans were first realized in 2012 when a total of $196 was recorded in non-interest income.
Investment services income includes commissions and fees earned from the sale of investment securities to correspondent banks. These commissions have provided steady income to the Corporation for the periods presented.
Loan servicing fees are fees earned for servicing residential mortgages and SBA loans offset by the amortization of mortgage servicing rights. These mortgage servicing rights are initially recorded at fair value and then amortized in proportion to, and over the period of, the estimated life of the underlying loans. In addition, impairment to the mortgage servicing rights may be recognized through a valuation allowance, and adjustments to the allowance can affect the net loan servicing fees. The amortization of mortgage servicing rights has exceeded the servicing fees earned during each of the periods presented due the relatively young age of the mortgage portfolio being serviced. For the three months ending September 30, 2013, loan servicing fees, net were ($19) compared to ($439) for the three months ending September 30, 2012, and included a reversal of a $90 impairment that had been recorded during the same period in 2012.
Sales of available-for-sale securities for the nine month periods ending September 30, 2013 and 2012, of $11,555 and $40,612, respectively, resulted in net gains of $78 and $798, respectively. Sales during the years ended December 31, 2012 and 2011 of $48,995 and $32,873, respectively, resulted in net gains of $991 and $672, respectively.
Compliance consulting fees are from activities engaged by Banc Compliance Group, Inc., a wholly-owned subsidiary of FFN. These fees are consulting fees paid by banking institutions unaffiliated with the Corporation for the services provided by Banc Compliance Group.
Additionally, a gain on bank-owned life insurance added $606 to non-interest income in 2012 due to the payout of a policy subsequent to the death of a valued member of the Corporations executive management team.
131
Non-interest Expense
The following is our non-interest expense for the three and nine month periods ending September 30, 2013 and 2012 and for the years ended December 31, 2012 and 2011 (in thousands):
Three month period ending September 30, |
2013 | 2012 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Salaries and employee benefits |
$ | 3,339 | $ | 2,843 | $ | 496 | 17.4 | % | ||||||||
Occupancy and equipment |
666 | 641 | 25 | 3.9 | % | |||||||||||
FDIC assessment expense |
101 | 115 | (14 | ) | (12.2 | %) | ||||||||||
Loss on sale and write-down of foreclosed assets |
29 | | 29 | NM | ||||||||||||
Marketing |
70 | 67 | 3 | 4.5 | % | |||||||||||
Professional fees |
79 | 92 | (13 | ) | (14.1 | %) | ||||||||||
Other |
587 | 550 | 37 | 6.7 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest expense |
$ | 4,871 | $ | 4,308 | $ | 563 | 13.1 | % | ||||||||
|
|
|
|
|
|
|
|
Nine month period ending September 30, |
2013 | 2012 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Salaries and employee benefits |
$ | 9,830 | $ | 7,923 | $ | 1,907 | 24.1 | % | ||||||||
Occupancy and equipment |
1,990 | 1,821 | 169 | 9.3 | % | |||||||||||
FDIC assessment expense |
254 | 325 | (71 | ) | (21.8 | %) | ||||||||||
Loss on sale and write-down of foreclosed assets |
250 | 30 | 220 | 733.3 | % | |||||||||||
Marketing |
193 | 161 | 32 | 19.9 | % | |||||||||||
Professional fees |
322 | 253 | 69 | 27.3 | % | |||||||||||
Other |
1,690 | 1,506 | 184 | 12.2 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest expense |
$ | 14,529 | $ | 12,019 | $ | 2,510 | 20.9 | % | ||||||||
|
|
|
|
|
|
|
|
Years ending December 31, |
2012 | 2011 |
$
Increase (decrease) |
%
Increase (decrease) |
||||||||||||
Salaries and employee benefits |
$ | 11,020 | $ | 8,436 | $ | 2,584 | 30.6 | % | ||||||||
Occupancy and equipment |
2,496 | 2,272 | 224 | 9.9 | % | |||||||||||
FDIC assessment expense |
441 | 588 | (147 | ) | (25.0 | %) | ||||||||||
Loss on sale and write-down of foreclosed assets |
44 | 293 | (249 | ) | (85.0 | %) | ||||||||||
Marketing |
231 | 181 | 50 | 27.6 | % | |||||||||||
Professional fees |
380 | 225 | 155 | 68.9 | % | |||||||||||
Other |
2,245 | 1,656 | 589 | 35.6 | % | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest expense |
$ | 16,857 | $ | 13,651 | $ | 3,206 | $ | 23.5 | % | |||||||
|
|
|
|
|
|
|
|
|||||||||
|
NM Not meaningful
As shown in the tables above, non-interest expense has increased each period and is indicative of the Corporations overall growth during this time. The primary increases have been in salaries and occupancy, as the bank has added two branches and a loan production office during these periods and increased staffing from 78 full-time equivalent employees as of December 31, 2011, to 114 as of September 30, 2013. The increased staffing is due not only to the new branch locations but also to additional operational staff needed to handle the growth in loans and deposits.
FDIC assessment expense decreased over time due to lower FDIC insurance premiums resulting from favorable trends in FFNs capital levels and supervisory evaluations.
Loss on sale and write-down of foreclosed assets consists of gains or losses on the sale of OREO properties and other foreclosed assets and valuation adjustments against the carrying costs of foreclosed assets. For the nine months ended September 30, 2013, these expenses were $250 compared to $30 for the nine months ended September 30, 2012. This increase was primarily due to a valuation adjustment of $190 on one OREO property. The loss on sale and write-down of foreclosed assets for the year ended December 31, 2012, were $44 compared to $293 for the year ended December 31, 2011. The expenses in 2011 were mostly from losses on the sales of OREO properties.
132
A large component of other non-interest expenses is costs related to maintaining the deposit, mortgage loan and other loan portfolios. Specifically, deposit related expenses include costs associated with ATMs, internet banking and remote deposit processing. Mortgage loan expenses include vendor service fees, investor transaction fees and credit report fees. Expenses associated with other loans include appraisal, legal and credit report fees. Each of these categories of expenses increased during the periods presented due to growth in the deposit and loan portfolios. Additionally, other non-interest expenses increased for the year ended December 31, 2012, due to a $132 payout of a split dollar benefit from bank-owned life insurance as well as increases in franchise tax expense and office supplies.
Income Tax Expense
We recognized an income tax expense for the three months ended September 30, 2013 and 2012 of $625 and $639, respectively, and $1,945 and $1,399 for the nine months ended September 30, 2013 and 2012, respectively. Income tax expense for years ended December 31, 2012 and 2011 was $2,056 and $111, respectively, an effective tax rate of 33.2% and 4.9%, respectively. The reason for the low effective tax rate in 2011 was the reversal of the deferred tax valuation allowance of $843. A valuation allowance is required when it is more likely than not that the deferred tax assets will not be realized, and in 2011 we determined that FFN will likely realize the benefit of these temporary timing differences.
COMPARISON OF BALANCE SHEETS AT SEPTEMBER 30, 2013, AND DECEMBER 31, 2012 AND 2011
Overview
Our total assets increased by $112,639, or 24.2%, from December 31, 2011 to December 31, 2012 and by $82,143, or 14.2%, from that date to September 30, 2013. The increase in our total assets was primarily funded by growth in the loan portfolio.
Loans
Lending-related income is the most important component of our net interest income and is a major contributor to profitability. The loan portfolio is the largest component of earning assets, and it therefore generates the largest portion of revenues. The absolute volume of loans and the volume of loans as a percentage of earning assets is an important determinant of net interest margin as loans are expected to produce higher yields than securities and other earning assets. Total loans, net of deferred fees, at September 30, 2013, December 31, 2012 and December 31, 2011 were $377,910, $299,483 and $229,635, respectively, an increase of $78,427, or 26.2%, between December 31, 2012 and September 30, 2013, and an increase of $69,848, or 30.4%, between December 31, 2011 and December 31, 2012. This consistent growth in the Banks loan portfolio is due to increased market penetration and a healthy local economy that was not greatly impacted by the recent recession. We have also been adding experienced lending officers to our staff and intend to continue doing so to maintain this loan growth.
133
The table below provides a summary of the loan portfolio composition for the periods noted.
Types of Loans | 9/30/13 | 12/31/12 | 12/31/11 | 12/31/10 | 12/31/09 | 12/31/08 | ||||||||||||||||||||||||||||||||||||||||||
Amount |
%
of total |
Amount |
%
of total |
Amount |
%
of total |
Amount |
%
of total |
Amount |
%
of total |
Amount |
%
of total |
|||||||||||||||||||||||||||||||||||||
Real estate: |
||||||||||||||||||||||||||||||||||||||||||||||||
Residential |
$ | 127,463 | 33.7 | % | $ | 106,589 | 35.5 | % | $ | 91,896 | 39.9 | % | $ | 91,748 | 47.7 | % | $ | 71,373 | 44.4 | % | $ | 41,926 | 46.9 | % | ||||||||||||||||||||||||
Construction and land development |
102,278 | 27.0 | % | 83,767 | 27.9 | % | 49,920 | 21.7 | % | 39,040 | 20.3 | % | 31,011 | 19.3 | % | 15,257 | 17.1 | % | ||||||||||||||||||||||||||||||
Commercial |
108,848 | 28.7 | % | 77,682 | 25.9 | % | 65,822 | 28.6 | % | 47,554 | 24.7 | % | 45,615 | 28.3 | % | 26,227 | 29.4 | % | ||||||||||||||||||||||||||||||
Commercial and Industrial |
27,289 | 7.2 | % | 20,280 | 6.8 | % | 14,315 | 6.2 | % | 11,925 | 6.2 | % | 11,072 | 6.9 | % | 3,847 | 4.3 | % | ||||||||||||||||||||||||||||||
Consumer and other |
12,744 | 3.4 | % | 11,758 | 3.9 | % | 8,132 | 3.6 | % | 2,156 | 1.1 | % | 1,833 | 1.1 | % | 2,084 | 2.3 | % | ||||||||||||||||||||||||||||||
|
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|
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
Total loans gross |
378,622 | 100.0 | % | 300,076 | 100.0 | % | 230,085 | 100.0 | % | 192,423 | 100.0 | % | 160,904 | 100.0 | % | 89,341 | 100.0 | % | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||
Less: deferred loan fees, net |
(712 | ) | (593 | ) | (450 | ) | (286 | ) | (201 | ) | (108 | ) | ||||||||||||||||||||||||||||||||||||
Less: allowance for loan losses |
(4,432 | ) | (3,983 | ) | (3,413 | ) | (3,177 | ) | (2,189 | ) | (1,136 | ) | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||||||||||||||
Total loans, net |
$ | 373,478 | $ | 295,500 | $ | 226,222 | $ | 188,960 | $ | 158,514 | $ | 88,097 | ||||||||||||||||||||||||||||||||||||
|
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|
|
|
|
|
|
|
|
|
|
Real estate loans comprised 89.4% of the loan portfolio at September 30, 2013. The largest portion (33.7%) of this portfolio as of September 30, 2013, was residential real estate loans which totaled $127,463 at September, 30, 2013, up $20,874, or 19.6%, from December 31, 2012. The residential real estate classification primarily includes 1-4 family residential loans which are typically conventional first-lien home mortgages, not including loans held for sale in the secondary market.
Construction and land development loans totaled $102,278 at September, 30, 2013, up $18,511, or 22.1%, from December 31, 2012, and comprised 27.0% of the real estate portfolio. Loans in this classification provide financing for the development of commercial income properties, multi-family residential development, and land designated for future development.
Commercial real estate loans totaled $108,848 at September 30, 2013, up $31,166, or 40.1%, from December 31, 2012, and comprised 28.7% of the real estate portfolio. The commercial real estate loan classification primarily includes commercial-based mortgage loans that are secured by nonfarm, nonresidential real estate properties and multi-family residential properties.
Commercial and industrial loans have been increasing steadily and comprised 7.2% of total loans at September 30, 2013. The commercial loan classification primarily consists of commercial loans to small businesses as well as commercial leases.
The repayment of loans is a source of additional liquidity for us. The following table sets forth the loans maturing within specific intervals at September 30, 2013, excluding unearned net fees and costs.
Loan Maturity Schedule
September 30, 2013 | ||||||||||||||||
One year or less |
Over one year to
five years |
Over five Years | Total | |||||||||||||
Real estate: |
||||||||||||||||
Residential |
$ | 13,813 | $ | 60,827 | $ | 52,823 | $ | 127,463 | ||||||||
Construction and land development |
92,862 | 8,299 | 1,117 | 102,278 | ||||||||||||
Commercial |
21,646 | 59,028 | 28,174 | 108,848 | ||||||||||||
Commercial and Industrial |
12,610 | 10,299 | 4,380 | 27,289 | ||||||||||||
Consumer and other |
8,136 | 4,281 | 327 | 12,744 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 149,067 | $ | 142,734 | $ | 86,821 | $ | 378,622 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Fixed interest rate |
$ | 85,943 | $ | 130,382 | $ | 50,250 | $ | 266,575 | ||||||||
Variable interest rate |
63,124 | 12,352 | 36,571 | 112,047 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 149,067 | $ | 142,734 | $ | 86,821 | $ | 378,622 | ||||||||
|
|
|
|
|
|
|
|
134
The information presented in the above table is based upon the contractual maturities of the individual loans, including loans which may be subject to renewal at their contractual maturity. Renewal of such loans is subject to review and credit approval, as well as modification of terms upon their maturity. Consequently, we believe this treatment presents fairly the maturity structure of the loan portfolio.
Allowance for Loan Losses
We maintain an allowance for loan losses that we believe is adequate to absorb the probable incurred losses inherent in our loan portfolio. The allowance is increased by provisions for loan losses charged to earnings and is decreased by loan charge-offs net of recoveries of prior period loan charge-offs. The level of the allowance is determined on a quarterly basis, although management is engaged in monitoring the adequacy of the allowance on a more frequent basis. In estimating the allowance balance, we consider such factors as:
| our past loan experience; |
| the nature and volume of the portfolio; |
| risks known about specific borrowers; |
| underlying estimated values of collateral securing loans; |
| current and anticipated economic conditions; and, |
| other factors which we believe affect the allowance for probable incurred losses |
The allowance for loan losses consists of two primary components: (1) a specific component which relates to loans that are individually classified as impaired and (2) an unallocated, or general, component which covers non-impaired loans and is based on historical loss experience adjusted for current factors. The historical loss experience is determined by portfolio segment and is based on a combination of the Corporations loss history and loss history from peer group over the past three years. This actual loss experience is supplemented with other economic factors based on the risks present for each portfolio segment.
The following loan portfolio segments have been identified: (1) Construction and land development loans, (2) Commercial real estate loans, (3) Residential real estate, (4) Commercial and industrial loans, and (4) Consumer and other loans. We evaluate the risks associated with these segments based upon specific characteristics associated with the loan segments. These risk characteristics include, but are not limited to, the value of the underlying collateral, adverse economic conditions, and the borrowers cashflow. While the total allowance consists of a specific portion and an unallocated portion, both portions of the allowance are available to provide for probable incurred loan losses in the entire portfolio.
At September 30, 2013, the allowance for loan losses was $4,432, compared to $3,983 at December 31, 2012 and $3,413 at December 31, 2011. The allowance for loan losses as a percentage of total loans was 1.17%, 1.33%, and 1.48% at September 30, 2013, and December 31, 2012 and 2011, respectively. Loan growth during these periods is the primary reason for the increases in the allowance amount. The decrease in the ratio for the period ending September 30, 2013, compared to the period ended December 31, 2012, is due to a decrease in the general reserves as a percent of total loans as a result of improving economic conditions. The primary reason for the decrease in the ratio for the period ended December, 31, 2012, compared to the period ended December 31, 2011, is a decline in loans classified as impaired.
135
The table below sets forth the activity in the allowance for loan losses for the periods presented.
Analysis of Changes in Allowance for Loan Losses
Nine month
period ending Sep 30, 2013 |
Year ended
Dec 31, 2012 |
Year ended
Dec 31, 2011 |
Year ended
Dec 31, 2010 |
Year ended
Dec 31, 2009 |
Year ended
Dec 31, 2008 |
|||||||||||||||||||
Beginning balance |
$ | 3,983 | $ | 3,413 | $ | 3,177 | $ | 2,189 | $ | 1,136 | $ | 63 | ||||||||||||
Loans charged-off: |
||||||||||||||||||||||||
Residential real estate |
(107 | ) | (443 | ) | (418 | ) | 0 | (112 | ) | (88 | ) | |||||||||||||
Construction & land development |
0 | (25 | ) | 0 | (280 | ) | (192 | ) | 0 | |||||||||||||||
Commercial real estate |
0 | (575 | ) | 0 | 0 | 0 | 0 | |||||||||||||||||
Commercial & industrial |
0 | 0 | (26 | ) | 0 | (50 | ) | 0 | ||||||||||||||||
Consumer |
0 | (7 | ) | 0 | 0 | 0 | 0 | |||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total loans charged-off |
(107 | ) | (1,050 | ) | (444 | ) | (280 | ) | (354 | ) | (88 | ) | ||||||||||||
Recoveries on loans previously charged-off: |
||||||||||||||||||||||||
Residential real estate |
99 | 14 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Construction & land development |
0 | 58 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Commercial real estate |
0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Commercial & industrial |
0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Consumer |
0 | 0 | 0 | 0 | 0 | 0 | ||||||||||||||||||
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Total loan recoveries |
99 | 72 | 0 | 0 | 0 | 0 | ||||||||||||||||||
Net charge-offs |
(8 | ) | (978 | ) | (444 | ) | (280 | ) | (354 | ) | (88 | ) | ||||||||||||
Provision for loan losses charged to expense |
457 | 1,548 | 680 | 1,268 | 1,407 | 1,161 | ||||||||||||||||||
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Total allowance at end of period |
$ | 4,432 | $ | 3,983 | $ | 3,413 | $ | 3,177 | $ | 2,189 | $ | 1,136 | ||||||||||||
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Total loans, gross, at end of period (1) |
$ | 378,622 | $ | 300,076 | $ | 230,085 | $ | 192,423 | $ | 160,904 | $ | 89,341 | ||||||||||||
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Average loans (1) |
$ | 326,150 | $ | 266,469 | $ | 203,997 | $ | 173,535 | $ | 132,718 | $ | 49,226 | ||||||||||||
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Allowance to total loans |
1.17 | % | 1.33 | % | 1.48 | % | 1.65 | % | 1.36 | % | 1.27 | % | ||||||||||||
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Net charge-offs to average loans |
0.00 | % | 0.37 | % | 0.22 | % | 0.16 | % | 0.27 | % | 0.18 | % | ||||||||||||
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(1) | Loan balances exclude loans held for sale |
While no portion of the allowance is in any way restricted to any individual loan or group of loans, and the entire allowance is available to absorb losses from any and all loans, the following table summarizes our allocation of allowance for loan losses by loan category and loans in each category as a percentage of total loans, for the periods presented.
Sep. 30, 2013 | Dec. 31, 2012 | Dec. 31, 2011 | ||||||||||||||||||||||||||||||||||
Amount |
% of
allowance to total |
% of loan
type to total loans |
Amount |
% of
allowance to total |
% of loan
type to total loans |
Amount |
% of
allowance to total |
% of loan
type to total loans |
||||||||||||||||||||||||||||
Real estate loans: |
||||||||||||||||||||||||||||||||||||
Residential |
$ | 1,004 | 22.7 | % | 33.7 | % | $ | 893 | 22.4 | % | 35.5 | % | $ | 1,043 | 30.6 | % | 39.9 | % | ||||||||||||||||||
Construction and land development |
1,558 | 35.2 | % | 27.0 | % | 1,342 | 33.7 | % | 27.9 | % | 928 | 27.2 | % | 21.7 | % | |||||||||||||||||||||
Commercial |
1,314 | 29.6 | % | 28.7 | % | 1,267 | 31.8 | % | 25.9 | % | 1,151 | 33.7 | % | 28.6 | % | |||||||||||||||||||||
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Total real estate loans |
3,876 | 87.5 | % | 89.4 | % | 3,502 | 87.9 | % | 89.3 | % | 3,122 | 91.5 | % | 90.2 | % | |||||||||||||||||||||
Commercial loans |
406 | 9.2 | % | 7.2 | % | 275 | 6.9 | % | 6.8 | % | 188 | 5.5 | % | 6.2 | % | |||||||||||||||||||||
Consumer and other loans |
150 | 3.3 | % | 3.4 | % | 206 | 5.2 | % | 3.9 | % | 103 | 3.0 | % | 3.6 | % | |||||||||||||||||||||
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Total |
$ | 4,432 | 100 | % | 100 | % | $ | 3,983 | 100.0 | % | 100 | % | $ | 3,413 | 100.0 | % | 100 | % | ||||||||||||||||||
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136
Dec. 31, 2010 | Dec. 31, 2009 | Dec. 31, 2008 | ||||||||||||||||||||||||||||||||||
Amount |
% of
allowance to total |
% of loan
type to total loans |
Amount |
% of
allowance to total |
% of loan
type to total loans |
Amount |
% of
allowance to total |
% of loan
type to total loans |
||||||||||||||||||||||||||||
Real estate loans: |
||||||||||||||||||||||||||||||||||||
Residential |
$ | 1,071 | 33.7 | % | 47.7 | % | $ | 395 | 18.0 | % | 44.4 | % | $ | 336 | 29.6 | % | 46.9 | % | ||||||||||||||||||
Construction and land development |
696 | 21.9 | % | 20.3 | % | 510 | 23.3 | % | 19.3 | % | 320 | 28.2 | % | 17.1 | % | |||||||||||||||||||||
Commercial |
1,130 | 35.6 | % | 24.7 | % | 1,105 | 50.5 | % | 28.3 | % | 413 | 36.3 | % | 29.4 | % | |||||||||||||||||||||
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Total real estate loans |
2,897 | 91.2 | % | 92.7 | % | 2,010 | 91.8 | % | 92.0 | % | 1,069 | 94.1 | % | 93.4 | % | |||||||||||||||||||||
Commercial loans |
217 | 6.8 | % | 6.2 | % | 136 | 6.2 | % | 6.9 | % | 48 | 4.2 | % | 4.3 | % | |||||||||||||||||||||
Consumer and other loans |
63 | 2.0 | % | 1.1 | % | 43 | 2.0 | % | 1.1 | % | 19 | 1.7 | % | 2.3 | % | |||||||||||||||||||||
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Total |
$ | 3,177 | 100.0 | % | 100.0 | % | $ | 2,189 | 100.0 | % | 100.0 | % | $ | 1,136 | 100 | % | 100.0 | % | ||||||||||||||||||
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Fluctuations in the allocations during the periods presented are due, in part, to changes in the specific reserve factors assigned to each category of loans. The Corporation has relied heavily on the loss history of peer groups due to the lack of its own history of losses; therefore, reserve factors have been adjusted in accordance with the loss performance experienced by a select group of local peer banks. Allocations between categories of loans have also been affected by the change in the mix of loans among the categories.
As of September 30, 2013, the largest component of the allowance was associated with construction and land development real estate loans. The steady increase in the reserves on this portfolio since December 31, 2011, is due to significant growth in construction loans combined with the slightly higher reserve factor management has assigned to this category of loans. The next largest component of the allowance was associated with commercial real estate loans. This category of loans increased from $413 for the period ended December 31, 2008, to $1,105 for the period ending December 31, 2009, due to significant commercial real estate loan growth during this period combined with an increase in specific reserves resulting from the downgrade of a large credit. The third largest component of the allowance was associated with residential real estate loans, which increased from $395 for the year ended December, 31, 2009, to $1,071 for the year ended December 31, 2010, due primarily to a change in the reserve factors.
Nonperforming Assets
Non-performing loans consist of non-accrual loans and loans past due 90 days or more and still accruing interest. Non-performing assets consist of non-performing loans plus OREO (i.e. real estate acquired through foreclosure or deed in lieu of foreclosure). We place loans on non-accrual status when they are past due 90 days and management believes the borrowers financial condition, after giving consideration to economic conditions and collection efforts, is such that collection of interest is doubtful. When we place a loan on non-accrual status, interest accruals cease and uncollected interest is reversed and charged against current income. The interest on these loans is accounted for on the cash-basis, or cost-recovery method, until qualifying for return to accrual. Loans are returned to accrual status when all the principal and interest amounts contractually due are brought current and future payments are reasonably assured.
The primary component of non-performing loans is non-accrual loans, which as of September 30, 2013 totaled $2,621. The other component of non-performing loans are loans past due greater than 90 days and still accruing interest. Loans that are past due greater than 90 days are placed on non-accrual status unless they are both well-secured and in the process of collection. We had no loans outstanding that were past due 90 days or more and still accruing interest at September 30, 2013.
At September 30, 2013, total OREO was $761 and is included in our non-performing assets (NPA). OREO is carried at the lower of cost or market less the estimated cost to sell. Further declines in real estate values can affect the market value of these assets. Any further decline in market value beyond its cost basis is recorded as a current expense in our Consolidated Statement of Income.
137
The table below summarizes non-performing loans and assets for the periods presented.
Sep. 30,
2013 |
Dec. 31,
2012 |
Dec. 31,
2011 |
Dec. 31,
2010 |
Dec. 31,
2009 |
Dec. 31,
2008 |
|||||||||||||||||||
Non-accrual loans |
$ | 2,621 | $ | 2,677 | $ | 3,431 | $ | 2,399 | $ | 5,144 | $ | 0 | ||||||||||||
Past due loans 90 days or more and still accruing interest |
0 | 0 | 0 | 358 | 507 | 0 | ||||||||||||||||||
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Total non-performing loans |
2,621 | 2,677 | 3,431 | 2,757 | 5,651 | 0 | ||||||||||||||||||
Foreclosed real estate (OREO) |
761 | 2,089 | 744 | 2,184 | 1,600 | 1,750 | ||||||||||||||||||
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Total non-performing assets |
3,382 | 4,766 | 4,175 | 4,941 | 7,251 | 1,750 | ||||||||||||||||||
Total non-performing loans as a percentage of total loans |
0.7 | % | 0.9 | % | 1.5 | % | 1.4 | % | 3.5 | % | | |||||||||||||
Total non-performing assets as a percentage of total assets |
0.5 | % | 0.8 | % | 0.9 | % | 1.4 | % | 2.7 | % | 0.9 | % | ||||||||||||
Allowance for loan losses as a percentage of non-performing loans |
169 | % | 149 | % | 99 | % | 115 | % | 39 | % | |
Investment Securities and Other Earning Assets
The investment securities portfolio is intended to provide FFN with adequate liquidity, flexible asset/liability management and a source of stable income. The portfolio is structured with minimal credit exposure to FFN and consists of both securities classified as available-for-sale and securities classified as held-to-maturity. All available-for sale securities are carried at fair value and may be used for liquidity purposes should management deem it to be in our best interest. Unrealized gains and losses on this portfolio are excluded from earnings, but are reported as other comprehensive income in a separate component of shareholders equity, net of income tax. Premium amortization and discount accretion are recognized as adjustments to interest income using the interest method. Realized gains or losses on sales are based on the net proceeds and the adjusted carrying value amount of the securities sold using the specific identification method. The held-to-maturity securities are carried at amortized cost.
Distribution of Investment Securities
September 30, 2013 | December 31, 2012 | December 31, 2011 | December 31, 2010 | |||||||||||||||||||||||||||||||||||||||||||||
AVAILABLE-FOR-SALE |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
||||||||||||||||||||||||||||||||||||
US government- sponsored entities and agencies |
$ | 8,719 | $ | 7,806 | 4.2 | % | $ | 4,020 | $ | 4,022 | 2.2 | % | $ | 1,000 | $ | 1,001 | 0.5 | % | $ | 1,000 | $ | 985 | 0.8 | % | ||||||||||||||||||||||||
US Treasury securities |
0 | 0 | | 8,000 | 8,000 | 4.3 | % | 5,000 | 5,000 | 2.7 | % | 5,000 | 5,000 | 4.2 | % | |||||||||||||||||||||||||||||||||
Mortgage-backed securities: residential |
179,394 | 177,597 | 94.4 | % | 169,902 | 171,433 | 92.1 | % | 178,152 | 180,672 | 96.8 | % | 112,410 | 112,975 | 95.0 | % | ||||||||||||||||||||||||||||||||
State and political subdivisions |
2,690 | 2,689 | 1.4 | % | 2,690 | 2,663 | 1.4 | % | | | | | | | ||||||||||||||||||||||||||||||||||
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Total |
$ | 190,803 | $ | 188,092 | 100.0 | % | $ | 184,612 | $ | 186,118 | 100.0 | % | $ | 184,152 | $ | 186,673 | 100.0 | % | $ | 118,410 | $ | 118,960 | 100.0 | % | ||||||||||||||||||||||||
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September 30, 2013 | December 31, 2012 | December 31, 2011 | December 31, 2010 | |||||||||||||||||||||||||||||||||||||||||||||
HELD TO MATURITY |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
Amortized
Cost |
Fair
Value |
% of
total |
||||||||||||||||||||||||||||||||||||
US government-sponsored entities and agencies |
$ | 3,728 | $ | 3,434 | 7.1 | % | $ | 2,971 | $ | 3,001 | 8.7 | % | $ | | $ | | | $ | | $ | | | ||||||||||||||||||||||||||
US Treasury securities |
| | | | | | | | | | | | ||||||||||||||||||||||||||||||||||||
Mortgage-backed securities: residential |
37,124 | 36,757 | 76.2 | % | 24,686 | 25,133 | 72.8 | % | 6,327 | 6,635 | 74.9 | % | 6,261 | 6,382 | 83.6 | % | ||||||||||||||||||||||||||||||||
State and political subdivisions |
8,281 | 8,039 | 16.7 | % | 6,158 | 6,383 | 18.5 | % | 2,124 | 2,222 | 25.1 | % | 1,265 | 1,252 | 16.4 | % | ||||||||||||||||||||||||||||||||
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Total |
$ | 49,133 | $ | 48,230 | 100.0 | % | $ | 33,815 | $ | 34,517 | 100.0 | % | $ | 8,451 | $ | 8,857 | 100.0 | % | $ | 7,526 | $ | 7,634 | 100.0 | % | ||||||||||||||||||||||||
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138
The tables below summarize the maturity distribution of securities, weighted average yield by range of maturities, and distribution of securities as of September 30, 2013.
One year or less |
Over one through
five years |
Over five
through ten years |
Over ten years | Total | ||||||||||||||||||||||||||||||||||||
Fair
Value |
Yield | Fair Value | Yield |
Fair
Value |
Yield |
Fair
Value |
Yield | Fair Value | Yield | |||||||||||||||||||||||||||||||
AVAILABLE-FOR-SALE |
||||||||||||||||||||||||||||||||||||||||
US government-sponsored entities and agencies |
$ | | | $ | | | $ | | | $ | 7,806 | 2.18 | % | $ | 7,806 | 2.18 | % | |||||||||||||||||||||||
Mortgage-backed securities: residential |
1,701 | 1.88 | % | 153,997 | 2.45 | % | 7,723 | 2.86 | % | 14,176 | 2.64 | % | 177,597 | 2.48 | % | |||||||||||||||||||||||||
State and political subdivisions |
2,689 | 0.45 | % | | | | | | | 2,689 | 0.45 | % | ||||||||||||||||||||||||||||
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Total |
$ | 4,390 | 1.00 | % | $ | 153,997 | 2.45 | % | $ | 7,723 | 2.86 | % | $ | 21,982 | 2.48 | % | $ | 188,092 | 2.44 | % | ||||||||||||||||||||
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One year or less |
Over one through
five years |
Over five through
ten years |
Over ten years | Total | ||||||||||||||||||||||||||||||||||||
Amortized
Cost |
Yield |
Amortized
Cost |
Yield |
Amortized
Cost |
Yield |
Amortized
cost |
Yield |
Amortized
Cost |
Yield | |||||||||||||||||||||||||||||||
HELD-TO-MATURITY |
||||||||||||||||||||||||||||||||||||||||
US government-sponsored entities and agencies |
$ | | | $ | 728 | 0.55 | % | $ | | | $ | 3,000 | 3.06 | % | $ | 3,728 | 2.57 | % | ||||||||||||||||||||||
Mortgage-backed securities: residential |
| | 16,127 | 2.52 | % | 5,424 | 3.33 | % | 15,573 | 2.76 | % | 37,124 | 2.74 | % | ||||||||||||||||||||||||||
State and political subdivisions |
| | 253 | 1.21 | % | 1,612 | 3.38 | % | 6,416 | 3.34 | % | 8,281 | 3.28 | % | ||||||||||||||||||||||||||
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Total |
$ | | | $ | 17,108 | 2.42 | % | $ | 7,036 | 3.34 | % | $ | 24,989 | 2.94 | % | $ | 49,133 | 2.82 | % | |||||||||||||||||||||
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Other earning assets are comprised of federal funds sold, interest-bearing deposits in financial institutions and restricted equity securities. We held no federal funds sold as of September 30, 2013, or December 31, 2012. As of December 31, 2011, we held $24 in federal funds sold. At September 30, 2013, we held no certificates of deposit at other FDIC insured financial institutions compared to $100 at December 31, 2012, and $200 at December 31, 2011. At September 30, 2013, we held $10,040 in an interest-bearing deposit account at the Federal Reserve Bank, compared to $22,430 at December 31, 2012, and $21,648 at December 31, 2013. In addition to our available-for-sale securities portfolio, we use federal funds sold and interest-bearing deposits in financial institutions for liquidity management and for investment yields. These accounts, as a group, will fluctuate as funding needs change.
FFN also had other investments of $2,922, $2,258 and $1,902 at September, 30, 2013, December 31, 2012 and 2011, respectively, consisting of capital stock in the Federal Reserve and the FHLB (required as members of the Federal Reserve Bank System and the Federal Home Loan Bank System). The FHLB and Federal Reserve investments are restricted in that they can only be sold back to the respective institutions or another member institution at par, and are thus, not liquid, have no ready market or quoted market value, and are carried at cost.
Bank Premises and Equipment
Bank premises and equipment was $3,430 at September 30, 2013 compared to $2,944 at December 31, 2012, an increase of $486 or 16.5%. This increase was the result of purchases, net of dispositions, less depreciation expense. At December 31, 2011, bank premises and equipment was $2,705, an increase of $239 during the period ended December 31, 2012. This increase was the result of purchases, net of dispositions, less depreciation expense. At September 30, 2013, we operated from four banking locations, including our main office, and a mortgage loan production office in Brentwood, Tennessee, and a deposit and loan production office in Spring Hill, Tennessee. FSB has received regulatory approval to convert the office in Spring Hill to a full service branch, which opened on February 12, 2014. We currently lease all banking locations.
139
Deposits
Deposits represent FFNs largest source of funds. FFN competes with other bank and nonbank institutions for deposits, as well as with a growing number of non-deposit investment alternatives available to depositors, such as mutual funds, money market funds, annuities, and other brokerage investment products. Challenges to deposit growth include price changes on deposit products given movements in the rate environment and other competitive pricing pressures, and customer preferences regarding higher-costing deposit products or non-deposit investment alternatives.
At September 30, 2013, total deposits were $523,674, an increase of $9,031, or 1.7%, compared to $514,643 at December 31, 2012. Included in FFNs funding strategy are brokered deposits. Total brokered deposits increased from $3,366 at December 31, 2012 to $20,000 at September 30, 2013. Excluding brokered deposits, deposits decreased $7,603 from December 31, 2012, to September 30, 2013, due to a decrease in public funds interest checking.
During the year ended December 31, 2012, total deposits increased $109,037, or 26.9%, compared to $405,606 at December 31, 2011. Brokered deposits declined $1,800 during this period.
Maturity of non-brokered time deposits of $100,000 or more
Sep. 30, 2013 | Dec. 31, 2012 | Dec. 31, 2011 | ||||||||||
Three months or less |
$ | 27,593 | $ | 18,676 | $ | 11,170 | ||||||
Three through six months |
5,848 | 5,435 | 5,824 | |||||||||
Six through twelve months |
12,003 | 21,388 | 17,059 | |||||||||
Over twelve months |
24,035 | 25,875 | 21,474 | |||||||||
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|
|
|
|||||||
Total |
$ | 69,479 | $ | 71,374 | $ | 55,527 | ||||||
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Federal Funds Purchased and Repurchase Agreements
As of September 30, 2013, the Corporation had federal funds purchased from correspondent banks totaling $36,329 compared to $20 and $0 outstanding as of December 31, 2012 and 2011, respectively. The primary reason for this increase was to fund the growth in loans that has exceeded deposit growth for the same periods.
As of September 30, 2013, securities sold under agreements to repurchase had an outstanding balance of $3,268 compared to $1,582 and $3,880 as of December 31, 2012 and 2011, respectively. Securities sold under agreements to repurchase are financing arrangements that mature daily. At maturity, the securities underlying the agreements are returned to the Corporation.
Federal Home Loan Bank Advances
The Corporation has established a line of credit with the Federal Home Bank of Cincinnati which is secured by a blanket pledge of 1-4 family residential mortgages. These accounts are summarized in the table below for the periods presented.
Schedule of Federal Home Loan Bank advances
Maximum
outstanding at any month end |
Average
balance |
Average
interest rate during the period |
Ending
Balance |
Weighted
Average interest rate at period end |
||||||||||||||||
Three months ended Sep. 30, 2013 |
$ | 28,000 | $ | 25,337 | 0.45 | % | $ | 28,000 | 0.43 | % | ||||||||||
Nine months ended Sep. 30, 2013 |
$ | 28,000 | $ | 14,337 | 0.62 | % | $ | 28,000 | 0.43 | % | ||||||||||
Year ended December 31, 2012 |
$ | 15,000 | $ | 9,914 | 0.88 | % | $ | 8,000 | 0.95 | % | ||||||||||
Year ended December 31, 2011 |
$ | 6,500 | $ | 3,212 | 1.79 | % | $ | 6,500 | 1.30 | % |
140
Liquidity
Liquidity is defined as the ability to meet anticipated customer demands for funds under credit commitments and deposit withdrawals at a reasonable cost and on a timely basis.
Liquidity risk involves the risk of being unable to fund assets with the appropriate duration and rate-based liabilities, as well as the risk of not being able to meet unexpected cash needs. Liquidity planning and management are necessary to ensure the ability to fund operations cost-effectively and to meet current and future potential obligations such as loan commitments, lease obligations, and unexpected deposit outflows. In this process, we focus on both assets and liabilities and on the manner in which they combine to provide adequate liquidity to meet our needs.
Funds are available from a number of basic banking activity sources including the core deposit base, the repayment and maturity of loans, payments of principal and interest as well as sales of investments classified as available-for-sale, and sales of brokered deposits. As of September 30, 2013, $188,092 of the investment securities portfolio was classified as available-for-sale and is reported at fair value on the consolidated balance sheet. Another $49,133 of the portfolio was classified as held-for-sale and is reported at amortized cost. Approximately $192,548 of the total $237,225 investment securities portfolio on hand at September 30, 2013, was pledged to secure public deposits and repurchase agreements. Other funding sources available include repurchase agreements, federal funds purchased, and borrowings from the Federal Home Loan Bank.
Cash and cash equivalents at September 30, 2013 and December 31, 2012, were $16,390 and $24,997, respectively. The decrease in cash and cash equivalents was due to strong loan growth between December 31, 2012 and September 30, 2013 which was accompanied by modest deposit growth during the same period.
Interest Rate Sensitivity Gap Analysis
Interest rate sensitivity refers to the responsiveness of interest-earning assets and interest-bearing liabilities to changes in market interest rates. The rate sensitive position, or gap, is the difference in the volume of rate-sensitive assets and liabilities, at a given time interval, including both floating rate instruments and instruments which are approaching maturity. The measurement of our interest rate sensitivity, or gap, is one of the principal techniques we use in our asset/liability management effort. The asset mix of our balance sheet is evaluated continually in terms of several variables: yield, credit quality, and appropriate funding sources and liquidity. Management of the liability mix of the balance sheet focuses on expanding the various funding sources.
The following table represents a schedule of assets and liabilities of Franklin Financial Network, Inc. repricing over various time intervals. The primary market risk faced by the Bank is interest rate risk. The static gap analysis starts with contractual repricing information for assets, liabilities, and off-balance sheet instruments. These items are then combined with repricing estimations for administered rate (interest-bearing demand deposits, savings, and money market accounts) and non-rate related products (demand deposit accounts, other assets, and other liabilities) to create a baseline repricing balance sheet. In addition to the contractual information, residential mortgage whole loan products and mortgage-backed securities are adjusted based on industry estimates of prepayment speeds that capture the expected prepayment of principal above the contractual amount based on how far away the contractual coupon is from market coupon rates.
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INTEREST RATE SENSITIVITY GAP
September 30, 2013
0-1 Yr | 1-3 Yrs | 3-5 Yrs | 5 Yrs + | Total | ||||||||||||||||
Interest-earning assets |
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Fixed rate loans (1) |
$ | 86,078 | $ | 31,734 | $ | 98,861 | $ | 49,902 | $ | 266,575 | ||||||||||
Variable rate loans (1) |
71,965 | 5,144 | 2,986 | 31,952 | 112,047 | |||||||||||||||
Investment securities (2) |
4,389 | 7,149 | 6,552 | 219,135 | 237,225 | |||||||||||||||
Other earning assets (3) |
12,962 | | | | 12,962 | |||||||||||||||
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Total interest-earning assets |
$ | 175,394 | $ | 44,027 | $ | 108,399 | $ | 300,989 | $ | 628,809 | ||||||||||
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Interest-bearing liabilities |
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NOW accounts |
$ | 63,765 | $ | | $ | | $ | | $ | 63,765 | ||||||||||
Money market accounts |
212,396 | | | | 212,396 | |||||||||||||||
Savings accounts |
15,975 | | | | 15,975 | |||||||||||||||
Time deposits (4) |
114,642 | 42,482 | 15,085 | | 172,209 | |||||||||||||||
Fed funds purchased and other borrowings (5) |
39,597 | | | | 39,597 | |||||||||||||||
Federal Home Loan Bank advances |
20,000 | 6,000 | 2,000 | | 28,000 | |||||||||||||||
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Total interest-bearing liabilities |
$ | 466,375 | $ | 48,482 | $ | 17,085 | $ | | $ | 531,942 | ||||||||||
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Interest sensitivity gap |
(290,981 | ) | (4,455 | ) | 91,314 | 300,989 | 98,867 | |||||||||||||
Cumulative gap |
(290,981 | ) | (295,436 | ) | (204,122 | ) | 96,867 | |||||||||||||
Cumulative gap RSA/RSL (6) |
0.38 | 0.43 | 0.62 | 1.18 |
(1) | Loans are shown at gross values and do not include $712 of net deferred origination fees and cost. |
(2) | Available-for-sale securities are shown at amortized cost. Held-to-maturity securities are shown at fair value. |
(3) | Includes interest-bearing deposits at the Federal Reserve Bank, Federal Home Loan Bank stock and Federal Home Loan Bank stock. |
(4) | Time deposits are shown at carrying value. |
(5) | Includes Federal funds purchased and securities sold under agreement to repurchase. |
(6) | Rate sensitive assets (RSA) divided by rate sensitive liabilities (RSL), cumulative basis. |
In order to limit exposure to interest rate risk, management monitors the liquidity and gap analysis on a periodic basis and adjusts pricing, term and product offerings when necessary to stay within applicable guidelines and maximize the effectiveness of asset/liability management.
Along with the static gap analysis, management also estimates the effect a gradual change and a sudden change in interest rates could have on expected net interest income through income simulation. Simulation is a better technique than gap analysis because variables are changed for the various rate conditions. The simulation is run using the prime rate as the base with the assumption of rates increasing 100, 200, 300 and 400 bps or decreasing 100, 200, 300 and 400 bps. All rates are increased or decreased parallel to the change in prime rate. The simulation assumes a static mix of assets and liabilities. As a result of the simulation, over a 12-month time period ending September 30, 2013, net interest income was estimated to increase 0.90% and 0.66% if rates increase 100 bps and 200 bps, respectively, and was estimated to decrease 4.31% and 17.61% in a 100 bps and 200 bps declining rate environment assumption, respectively. These results are in line with FFNs guidelines for rate sensitivity.
These results are based solely on the modeled changes in the market rates and do not reflect the earnings sensitivity that may arise from other factors such as changes in the shape of the yield curve, changes in spreads between key market rates, or changes in consumer or business behavior. These results also do not include any management action to mitigate potential income variances within the modeled process. The simulation results are one indicator of interest rate risk, and actual net interest income is largely impacted by the allocation of assets, liabilities and product mix.
Capital
Banks and bank holding companies, as regulated institutions, must meet required levels of capital. The FRB, the primary federal regulator for Franklin Synergy Bank, has adopted minimum capital regulations or
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guidelines that categorize components and the level of risk associated with various types of assets. Financial institutions are expected to maintain a level of capital commensurate with the risk profile assigned to their assets in accordance with the guidelines. The Corporation regularly reviews its capital adequacy to ensure compliance with these guidelines and that sufficient capital is available for current and future needs. Management actively reviews capital strategies for the Corporation and the Bank in light of perceived business risks associated with current and prospective earning levels, liquidity, asset quality, economic conditions in the markets served, and level of dividends available to shareholders. It is managements intent to maintain an optimal capital and leverage mix for growth and for shareholder return.
Selected capital ratios for the Corporation and the Bank were as follows:
Franklin Financial Network, Inc. (the Corporation)
Required for Capital
Adequacy Purposes |
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Actual | ||||||||||||||||
Amount | Ratio | Amount | Ratio | |||||||||||||
September 30, 2013 |
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Total capital (to risk-weighted assets) |
$ | 69,814 | 15.9 | % | $ | 35,232 | >8.0 | % | ||||||||
Tier 1 capital (to risk-weighted assets) |
65,382 | 14.9 | % | 17,616 | >4.0 | % | ||||||||||
Tier 1 capital (to average assets) |
65,382 | 10.3 | % | 25,487 | >4.0 | % |
Franklin Synergy Bank (the Bank)
Actual |
Required for Capital
Adequacy Purposes |
To Be Well Capitalized Under
Prompt Corrective Action Regulations |
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Amount | Ratio | Amount | Ratio | Amount | Ratio | |||||||||||||||||||
September 30, 2013 |
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Total capital (to risk-weighted assets) |
$ | 67,231 | 15.3 | % | $ | 35,216 | >8.0 | % | $ | 44,020 | 10.0 | % | ||||||||||||
Tier 1 capital (to risk-weighted assets) |
62,799 | 14.2 | % | 17,608 | >4.0 | % | 26,412 | 6.0 | % | |||||||||||||||
Tier 1 capital (to average assets) |
62,799 | 9.9 | % | 25,504 | >4.0 | % | 31,880 | 5.0 | % | |||||||||||||||
December 31, 2012 |
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Total capital (to risk-weighted assets) |
$ | 53,138 | 15.5 | % | $ | 27,506 | >8.0 | % | $ | 34,382 | 10.0 | % | ||||||||||||
Tier 1 capital (to risk-weighted assets) |
49,155 | 14.3 | % | 13,753 | >4.0 | % | 20,629 | 6.0 | % | |||||||||||||||
Tier 1 capital (to average assets) |
49,155 | 9.3 | % | 20,870 | >4.0 | % | 26,087 | 5.0 | % | |||||||||||||||
December 31, 2011 |
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Total capital (to risk-weighted assets) |
$ | 46,704 | 17.6 | % | $ | 21,246 | >8.0 | % | $ | 26,557 | 10.0 | % | ||||||||||||
Tier 1 capital (to risk-weighted assets) |
43,383 | 16.3 | % | 10,623 | >4.0 | % | 15,934 | 6.0 | % | |||||||||||||||
Tier 1 capital (to average assets) |
43,383 | 10.8 | % | 16,027 | >4.0 | % | 20,033 | 5.0 | % |
Effects of Inflation and Changing Prices
The accompanying consolidated financial statements have been prepared in accordance with generally accepted accounting principles, which require the measurement of financial position and operating results in terms of historical dollars without considering the change in the relative purchasing power of money over time due to inflation. Unlike most industrial companies, virtually all of the assets and liabilities of a financial institution are monetary in nature. As a result, interest rates generally have a more significant impact on the performance of a financial institution than the effects of general levels of inflation. Although interest rates do not necessarily move in the same direction or to the same extent as the prices of goods and services, increases in inflation generally have resulted in increased interest rates. In addition, inflation affects financial institutions increased cost of goods and services purchased, the cost of salaries and benefits, occupancy expense, and similar items. Inflation and related increases in interest rates generally decrease the market value of investments and loans held and may adversely affect liquidity, earnings, and shareholders equity. Commercial and other loan originations and refinancings tend to slow as interest rates increase, and can reduce our earnings from such activities.
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Contractual Obligations
While our liquidity monitoring and management considers both present and future demands for and sources of liquidity, the following table of contractual commitments focuses only on our future obligations. The table outlines principal amounts and timing of these obligations, excluding amounts due for interest, if applicable.
December 31, 2012 | ||||||||||||||||||||
(in thousands of dollars) | Total |
Due in
one year or less |
Due over
one year and less than three years |
Due over
three years and less than five years |
Due over
five years |
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Deposit maturities (1) |
$ | 127,965 | $ | 83,392 | $ | 31,702 | $ | 12,871 | $ | | ||||||||||
Securities sold under agreements to repurchase |
1,582 | 1,582 | | | | |||||||||||||||
Federal Home Loan Bank advances |
8,000 | | 6,000 | | 2,000 | |||||||||||||||
Operating lease obligations (2) |
8,165 | 1,207 | 1,623 | 1,212 | 4,123 | |||||||||||||||
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Total |
$ | 145,712 | $ | 86,181 | $ | 39,325 | $ | 14,083 | $ | 6,123 | ||||||||||
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(1) | Deposits include brokered and non-brokered time deposits. Although customers have rights to early withdrawal, early withdrawal penalties may apply. The penalty amount depends on the remaining time to maturity at the time of early withdrawal. |
(2) | Operating lease obligations include existing non-cancelable lease commitments. |
Off Balance Sheet Arrangements
We generally do not have any off-balance sheet arrangements other than approved and unfunded loans and lines and letters of credit to our customers in the ordinary course of business. At December 31, 2012, FFN had unfunded loan commitments outstanding of $40,939, unused lines of credit of $79,527, and outstanding standby letters of credit of $5,026. Further discussion of these commitments is included in Note 15, Loan Commitments and Other Related Activities of the Notes to Consolidated Financial Statements.
Emerging Growth Company Status
After filing the registration statement, of which this joint proxy statement/prospectus is a part, FFN will be subject to periodic reporting requirements under the Exchange Act. FFN is an emerging growth company, as defined in the JOBS Act, however, and it may take advantage of certain exemptions from various reporting requirements that are applicable to public companies that are not emerging growth companies, including, but not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act, reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements, and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and stockholder approval of any golden parachute payments not previously approved. In addition, even if FFN complies with the greater obligations of public companies that are not emerging growth companies immediately after this offering, FFN may avail itself of the reduced requirements applicable to emerging growth companies from time to time in the future, so long as it is an emerging growth company. FFN will remain an emerging growth company for up to five years, though FFN may cease to be an emerging growth company earlier under certain circumstances, including if, before the end of such five years, it is deemed to be a large accelerated filer under the rules of the SEC (which depends on, among other things, having a market value of common stock held by non-affiliates in excess of $700 million) or if FFNs total annual gross revenues equal or exceed $1 billion in a fiscal year. FFN cannot predict if investors will find its common stock less attractive because it will rely on these exemptions. If some investors find FFNs common stock less attractive as a result, there may be a less active trading market for FFNs common stock and FFNs stock price may be more volatile.
Further, the JOBS Act exempts emerging growth companies from being required to comply with new or revised financial accounting standards until private companies (that is, those that have not had a Securities Act registration statement declared effective or do not have a class of securities registered under the Exchange Act) are
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required to comply with the new or revised financial accounting standards. The JOBS Act provides that a company can elect to opt out of the extended transition period and comply with the requirements that apply to non-emerging growth companies but any such an election to opt out is irrevocable. We have elected to opt out of such extended transition period, which means that when a standard is issued or revised and it has different application dates for public or private companies, we will adopt the new or revised standard at the time public companies adopt the new or revised standard. This election is irrevocable.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
Following are the names of the executive officers, directors, and 10% or more shareholders of FFN and its subsidiaries. Also listed is the number of shares, 2010 Warrants, options and restricted shares which they or their spouses, dependent children, or affiliates own.
Name and Address |
Position in FSB |
Position in FFN |
Shares
Owned (%) 1 |
Warrants 2 |
Incorporator/
Nonemployee Options 3 |
Employee
Options 4 |
Restricted
Shares 5 |
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Sally E. Bowers |
Executive Vice President, Chief Mortgage Officer | None | 1,550 (0.03 | %) | 0 | 0 | 42,507 | 1,099 | ||||||||||||||||||
Joseph H. Bowman |
Executive Vice President, Chief Lending Officer | None | 10,585 (0.22 | %) | 0 | 0 | 37,119 | 2,170 | ||||||||||||||||||
Henry W. Brockman, Jr. 6 |
Director | Director | 66,800 (1.38 | %) | 125 | 15,375 | 0 | 0 | ||||||||||||||||||
James W. Cross, IV |
Director | Director | 20,000 (0.41 | %) | 0 | 6,000 | 0 | 0 | ||||||||||||||||||
Constance E. Edwards 7 |
None | 4,493 (0.09 | %) | 0 | 0 | 9,063 | 340 | |||||||||||||||||||
Kevin A. Herrington |
Executive Vice President, Chief Operations Officer | None | 7,398 (0.15 | %) | 0 | 0 | 45,191 | 1,845 | ||||||||||||||||||
Richard E. Herrington |
Director, President, CEO | Director, President, CEO | 260,179 (5.38 | %) | 0 | 0 | 114,366 | 2,973 | ||||||||||||||||||
Ashley P. Hill, III |
Executive Vice President, Chief Banking Officer | None | 10,584 (0.22 | %) | 0 | 0 | 65,809 | 1,856 | ||||||||||||||||||
J. Myers Jones, III |
Executive Vice President, Chief Credit Officer |
None | 0 (0.00 | %) | 0 | 0 | 40,079 | 2,009 | ||||||||||||||||||
Dr. David H. Kemp |
Director | Director, Secretary | 283,111 (5.86 | %) | 500 | 16,625 | 0 | 0 | ||||||||||||||||||
Sally P. Kimble |
Executive Vice President and Chief Financial Officer | Executive Vice President and Chief Financial Officer | 11,000 (0.23 | %) |
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0
0 |
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0
0 |
|
6,274 | 1,355 |
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Name and Address |
Position in FSB |
Position
|
Shares
Owned (%) 1 |
Warrants 2 |
Incorporator/
Nonemployee Options 3 |
Employee
Options 4 |
Restricted
Shares 5 |
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David McDaniel |
Executive Vice President, Chief Retail Officer | None | 3,000 (0.06 | %) | 0 | 0 | 18,242 | 1,183 | ||||||||||||||||
Jere D. Pewitt |
Executive Vice President, Senior Lending Officer | None | 10,585 (0.22 | %) | 0 | 0 | 37,119 | 2,170 | ||||||||||||||||
Paul M. Pratt, Jr. |
Director | Director | 25,000 (0.52 | %) | 0 | 16,625 | 0 | 0 | ||||||||||||||||
Aimee M. Punessen |
Senior Vice President, Marketing and Public Relations Manager | None | 2,000 (0.04 | %) | 0 | 0 | 50,948 | 1,520 | ||||||||||||||||
Melody Smiley |
Director | Director | 6,000 (0.12 | %) | 125 | 5,550 | 0 | 0 | ||||||||||||||||
Pamela J. Stephens |
Director | Director | 2,908 (0.06 | %) | 125 | 6,000 | 0 | 0 | ||||||||||||||||
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TOTALS |
725,193 (15.00 | %) | 875 | 66,175 | 466,717 | 18,520 |
1. | Based on 4,834,190 currently outstanding shares. |
2. | One warrant issued for each 20 shares purchased in the offering completed in 2010. |
3. | Nonqualified stock options issued to the original Incorporators, 100% of which are vested. Additional options were granted to each non-employee director then serving on FFNs Board of Directors on February 20, 2008 (500), June 15, 2009 (3,875), July 22, 2010 (450), June 2, 2011 (900), June 1, 2012 (2,175) and May 31, 2013 (2,475). |
4. | Incentive stock options and nonqualified stock options issued to employees. |
5. | Restricted shares issued to employees. These shares are not included in the Shares Owned column. |
6. | Mr. Brockman only received Incorporators options based upon 0.125 of 40,000 shares, rather than 50,000 shares since the additional 10,000 shares are beneficially, rather than directly, owned by him. |
7. | President, Banc Compliance Group subsidiary. |
MANAGEMENT OF FFN
Management Personnel
Following are the names and biographical information of the executive officers for FFN and FSB. Executive officers of FFN and FSB are appointed by the respective Boards of Directors. For information about the directors of FFN and FSB, see FFN AND MIDSOUTH PROPOSAL NO. 1 THE MERGER Board of Directors of the Combined Corporation and FFN PROPOSAL NO. 2 ELECTION OF DIRECTORS. Directors of FSB are elected by FFN, and directors of FFN are elected by the shareholders of FFN. The Board of Directors is elected each year at the annual meeting of shareholders of FFN.
Sally E. Bowers, age 60, has been the Executive Vice President and Mortgage Division Manager of FSB since November 2007. She has over 30 years of banking experience in Middle Tennessee, primarily in the mortgage banking area. Ms. Bowers began her banking career in 1975 in retail banking at Fidelity Federal Savings Bank which later merged with Union Planters National Bank. During her 20 years at Fidelity Federal/Union
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Planters, she rose to Vice President and was responsible for mortgage, commercial and consumer loan production. She spent a short stint in 1996 as Vice President/Mortgage Production Officer at First American National Bank. In 1996, Ms. Bowers joined Franklin National Bank as Vice President/Mortgage Lending Manager and later rose to Senior Vice President with full responsibility for production, secondary market, servicing and operation of the banks mortgage subsidiary, Franklin Financial Mortgage. After the sale of Franklin National Bank, she joined Cumberland Bank as Executive Vice President and Mortgage Division Manager in 2004 with management responsibilities of the mortgage division. Ms. Bowers has thorough knowledge of all facets of mortgage banking.
Joseph H. Bowman, age 66, joined FSB in October 2008 and is the Executive Vice President and Chief Lending Officer of FSB. He has 40 years of banking experience in Middle Tennessee. He began his banking career in 1969 at Third National Bank moving to Williamson County Bank in 1975. In 1991, Mr. Bowman joined Franklin National Bank as Executive Vice President and chair of the Officers Loan Committee. He also served on the Board of Directors for Franklin National Bank. After Franklin National Banks sale in 2004, he joined Cumberland Bank as Executive Vice President and co-chair of the Officers Loan Committee. Mr. Bowman brings a wealth of local market and lending knowledge to FSB. He is a long-time Williamson County banker and is involved in many community organizations.
Constance E. Edwards, age 50, is the President of FFNs subsidiary, Banc Compliance Group, Inc., purchased by FFN in May 2008. She began her compliance/paralegal career at SunTrust Bank in 1991 as a Corporate Paralegal. In 1998, she rose to Assistant Vice President and Compliance Analyst. In 1999, Ms. Edwards joined Franklin Financial Corporation, parent company of Franklin National Bank, as Vice President/Compliance Officer with full oversight of the banks compliance function. In 2003, she started her own compliance consulting business, Banc Compliance Group, LLC. Banc Compliance Group provides compliance consulting services to community banks. Ms. Edwards also has achieved the designation of Certified Regulatory Compliance Manager.
Kevin A. Herrington, age 38, is the Executive Vice President and Chief Operations Officer of FSB. While completing his education, Mr. Herrington worked part-time in banking as a Systems Support Specialist from 1997 through 1998. After a term in the military, he joined Franklin National Bank in 2000 as the Manager of Information Systems, overseeing the IT department. In 2002, he was recruited to Civitas BankGroup to centralize and standardize the IT and data processing areas. He built a central wide-area network, improved security and controls, and implemented a complete update of policies and procedures. Mr. Herrington updated and brought in-house all technology and technology-related customer products. He successfully navigated the process of strengthening all IT-related controls related to compliance with the Sarbanes Oxley Act. Additionally, Mr. Herrington has achieved the major recognized certifications within the industry including CISSP (certified information systems security professional), and AAP (accredited ACH professional). Kevin Herrington is the son of Richard E. Herrington.
Ashley P. Hill, III, age 53, is the Executive Vice President and Chief Banking Officer of FSB. He has been in banking in Middle Tennessee for 25 years, starting out at Third National Bank (now SunTrust) in 1983 in the management training program. Spending 12 years at Third National, he rose to the level of AVP/Commercial Relationship Manager before venturing into the community banking arena. Beginning in 1995, he worked for the former Brentwood National Bank as Senior Vice President and Commercial Lender before joining Trans Financial Bank upon the sale of Brentwood National. While at Trans Financial, he was Community President over their middle TN markets in Davidson, Williamson, Maury, and Rutherford counties. In 1998, Mr. Hill joined the Cumberland Bank (then The Community Bank) and Civitas family, progressing to the position of Chief Operating Officer before joining the Civitas holding company full-time in 2003. He served as the Director of Corporate Risk Management since that time and was also a member of the executive management turnaround team. During this time, he successfully standardized and centralized the functions of Internal Audit, Loan Review, and Consumer Compliance. His strong points throughout his banking career have been his management capabilities and relationship-building skills.
J. Myers Jones, III, age 63, serves as Executive Vice President, Chief Credit Officer, positions he has held since July of 2009. Mr. Jones has more than 30 years of local community banking experience, most recently with Cadence Bank in Franklin, Tennessee, where he served as Executive Vice President of Commercial Lending. Prior to his service at Cadence Bank, Mr. Jones served as President and CEO of Franklin National Bank in Franklin, Tennessee, for 13 years prior to Franklin Nationals acquisition by Fifth Third Bank. In addition to Franklin National Bank and Cadence Bank, Mr. Jones was instrumental in the success of several other area banks, including Sovran Bank and Commerce Union Bank.
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Sally P. Kimble, age 60, is the Executive Vice President and Chief Financial Officer of FFN and FSB. Ms. Kimbles background is primarily in accounting, operations and finance, having worked in community banking organizations for almost 30 years. Prior to joining FSB in April 2012, Ms. Kimble had recently been with American Bank & Trust of the Cumberlands in Cookeville, Tennessee, where she served as Executive Vice President, Chief Operating Officer, and Chief Financial Officer. Kimble also served as Executive Vice President and Chief Financial Officer for Capital Bank & Trust Company (Capital Bancorp, Inc.) in Nashville for seven years and prior to that was Treasurer, Senior Vice President and Chief Financial Officer for First Bank & Trust (First Financial Corporation) in Mt. Juliet, Tennessee. Kimble holds a B.A. from the University of Tennessee and certificates from the Graduate School of Bank Investments and Financial Management at the University of South Carolina and the Graduate School of Banking of the South at Louisiana State University. In addition, she holds a certificate from the College of Financial Planning in Denver, Colorado.
David McDaniel, age 46, is the Executive Vice President and Chief Retail Officer of FSB. Mr. McDaniel serves as Senior Vice President of Franklin Synergy Investment Management, a division of FSB. He is a Brentwood native and served as Regional President at Community First Bank & Trust in Cool Springs prior to joining FSB. In a banking career that spans more than 18 years, Mr. McDaniel has held roles at AmSouth Bank, First American Bank, Equitable Securities and Merrill Lynch. He holds a B.S. in Finance and an M.B.A. from the University of Tennessee in Knoxville, Tennessee. He is a graduate of Brentwood Academy in Brentwood. Mr. McDaniel is a graduate of Leadership Franklin and a member of the Williamson County/Franklin Chamber of Commerce.
Jere D. Pewitt, age 58, joined FSB in October 2008 and is the Executive Vice President and Senior Lending Officer of FSB. He started his banking career in 1978 at Williamson County Bank. In 1991, Mr. Pewitt joined Franklin National Bank as Senior Vice President and Senior Lender. After Franklin National Banks sale in 2004, he joined Cumberland Bank as Executive Vice President and Senior Lender. Mr. Pewitt brings a wealth of local business contacts and lending knowledge to FSB.
Aimee M. Punessen, age 56, is the Senior Vice President and Marketing and Public Relations Manager of FSB. She brings a wealth of experience to the position as both a consultant and manager. She began her Middle Tennessee career in 1982 at Aladdin Industries, and then served as a Contract and Program manager at Textron Aerostructures for six years. Subsequently from 1999 to 2005, Ms. Punessen worked in the not-for-profit segment. Clients included The Girl Scout Council of Cumberland Valley, The Tennessee Medical Foundation, Education First Foundation, and Williamson Works. Through this period of her career, Ms. Punessen served in various roles from Director of Development, to Corporate Communications, Executive Director, and as a development and public relations consultant. While at Williamson Works, she consulted on workforce and economic development issues with businesses in Williamson County, experience which is consistent with FSBs small business marketing effort. At the start of 2006, she came to Civitas BankGroup as Manager of Public and Investor Relations, as Civitas prepared to list on NASDAQ. She managed public relations efforts for Civitas including news releases, NASDAQ listing and institutional and individual investor relations presentations.
Directors and executive officers of FFN and its subsidiaries, together with their spouses, minor children, and other affiliates, currently own 725,193 shares of common stock, 875 2010 Warrants, 532,892 stock options, 18,520 shares of restricted stock. As a group, these persons currently own 15.00% of the outstanding 4,834,190 shares. If such persons exercised all their 2010 Warrants and options, then after including restricted shares as well, such persons would own 23.7% of the then outstanding shares. See SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF FFN, DESCRIPTION OF FFN CAPITAL STOCK and Certain Transactions with Management.
The TBCA and the bylaws of FFN require FFN to have a Board of Directors consisting of not less than three members. The Tennessee Banking Act and the bylaws of FSB require FSB to have a board of directors consisting of not less than five nor more than 25 members. Each of the directors of FSB during his or her whole term of service must be a citizen of the United States. A majority of FSBs directors must reside either within the State of Tennessee or within 100 miles of the location of any branch for at least one year immediately preceding their election and during the entire term of their service as directors.
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The Board of Directors of FSB has established a number of board committees to review various functions of FSB. FFNS Audit Committee serves as FSBs Audit Committee.
The Board of Directors is responsible for engaging external accounting and auditing firms to independently assess critical elements of risk. The Committee has engaged Crowe Horwath LLP to perform the annual financial audit and render an opinion on the fairness of the financial statements. The firm of Porter, Keadle and Moore performs an annual audit of information systems and internal control. The firm of Crowell & Crowell, PLLC, performs loan review on a semi-annual and as-needed basis. Independent auditors report their findings directly to the Audit Committee of the Board of Directors.
Compensation of Directors and Executive Officers
Directors of FSB receive fees for monthly Board meetings. The Board of Directors of FFN meets at least once per year, and the Board of Directors of FSB meets monthly. Audit and Personnel Committee chairpersons also receive fees for committee meetings.
There is standard medical and disability insurance for officers and employees similar to other banking institutions in the area. FFN may enter into other incentive compensation, bonus, and/or pension plans with its officers and employees in the future as may be decided by the Board of Directors. Officers and employees will receive salaries standard in the market and industry. See Employees.
An aggregate of equity incentive awards equal to up to 1,500,000 shares is reserved for stock options and restricted shares for employees and others pursuant to an Omnibus Equity Incentive Plan (see further details below). Stock options have been issued with exercise prices ranging from $10.00-$13.00. Options and restricted shares have been issued in the following amounts to the described groups of individuals:
1. | Incorporators/Non-Employee Directors. Each of the Incorporators received options to purchase 12.5% of the number of shares that the Incorporator purchased in FFNs initial stock offering (up to the first 50,000 shares an Incorporator purchased) at $10.00 per Share, resulting in 33,750 options issued to Incorporators. No Incorporator could receive options to purchase shares that exceed the number of shares being purchased by the Incorporator. Such options were issued to the Incorporators as a form of recognition for the risk these individuals bore and their efforts in organizing FFN. In addition, non-employee directors were issued an additional 500 options each on February 20, 2008; 3,875 options each on June 15, 2009; 450 options each on July 22, 2010; 900 options each on June 2, 2011; 2,175 options each on June 1, 2012; and 2,475 options each on May 31, 2013, for year-end compensation. |
2. | Employees. As an incentive to employees of FFN or FSB, incentive awards are made available for allocation by the Board of Directors through the Omnibus Equity Incentive Plan. Currently, FFN has the ability to issue up to 486,102 additional equity incentive awards after allocating 946,644 options to employees/directors/incorporators and 28,685 shares of restricted stock to employees for year-end incentive compensation. |
In 2007, FFN adopted the 2007 Qualified-Nonqualified Stock Option Plan. The shareholders of FFN at the annual meeting of shareholders in 2013 approved an amendment and restatement of this plan to be renamed the 2007 Omnibus Equity Incentive Plan (the Plan) (i) to increase the number of shares of FFNs common stock available for issuance under the Plan from 1,000,000 to 1,500,000; and (ii) to add other forms of compensation that can be awarded under the Plan to include Stock Appreciation Rights (SARs), Restricted Stock, and cash awards. The Board of Directors recommended adoption of the amendments as being necessary to attract new employees as FFN continues to grow and to have the ability to continue to reward employees with such incentive compensation, and encourage such valued employees to acquire a proprietary interest in FFN and to remain in its employ and service.
The Plan allows a Committee chosen by the Board of Directors (Committee) to grant incentive stock options (ISOs) within the meaning of the Internal Revenue Code of 1986, as amended (the Code) to key
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employees and officers of FFN and FSB and non-qualified options (NSOs and, together with the ISOs, the Options) to non-employee directors, incorporators, and others for the purchase of shares (Participants). As amended, the Plan also allows the Committee to grant awards of stock appreciation rights (SARs), restricted stock, and cash to key employees and officers of FFN and FSB and to non-employee directors and incorporators. The purpose of the Plan is to advance the interests of FFN and FSB by stimulating the efforts of key employees, directors, incorporators, and consultants, increasing their desire to continue in their employment with or services to FFN and FSB, assisting FFN and FSB in competing effectively with other enterprises for the services of new employees and directors necessary for the continued improvement of operations, and to attract and retain the best possible personnel for service as employees, officers, directors, and consultants of FFN and FSB. Accordingly, the Plan is designed to promote the interests of FFN and FSB and its shareholders, and, by facilitating stock ownership on the part of such participants, to encourage them to acquire a proprietary interest in FFN and to remain in its employ and service.
Committee Authority
The Committee may at any time terminate, suspend, or amend the Plan, except that the Committee shall not, without the authorization of the holders of a majority of the Stock (as defined in the Plan) voted at a shareholders meeting duly called and held, change any provisions (other than those adjustments for changes in capitalization) which determine (a) the aggregate number of shares for which Options may be granted under the Plan or to any person; (b) the classes of person eligible for Options; or (c) the duration of the Plan. The Committee may postpone any exercise of an Option for such time as the Committee may deem necessary in order to permit FFN (i) to effect, amend, or maintain any necessary registration of the Plan or the shares issuable upon the exercise of an Option under the securities laws of any applicable jurisdiction, (ii) to permit any action to be taken in order to (A) list such stock on a stock exchange if shares are then listed on such exchange or (B) comply with restrictions or regulations incident to the maintenance of a public market for its shares, including any rules or regulations of any stock exchange on which the shares are listed, or (iii) to determine that such shares and the Plan are exempt from such registration or that no action of the kind referred to in (ii) (B) above needs to be taken; and FFN shall not be obligated by virtue of any terms and conditions of any Option Agreement (as defined in the Plan) or any provision of the Plan to recognize the exercise of an Option or to sell or issue shares in violation of the Act or the law of any government having jurisdiction thereof. Any such postponement does not extend the terms of an Option and neither FFN nor its directors or officers have respect to any shares as to which the Option shall lapse because of such postponement.
Types of Awards
Options . Options are rights to purchase a specified number of shares of common stock at a price fixed by the Committee. Each option must be represented by an award agreement that identifies the option as either an incentive stock option within the meaning of Section 422 of the Code or non-qualified option, which does not satisfy the conditions of Section 422 of the Code. The award agreement also must specify the number of shares of common stock that may be issued upon exercise of the options and set forth the exercise price of the options. The exercise price for options that qualify as incentive stock options may not be less than 100% of the fair market value of the common stock as of the date of grant. The option exercise price may be satisfied in cash, by check, by exchanging shares of common stock owned by the Participant, delivery of a properly executed exercise notice along with sale or loan proceeds, other consideration permitted by applicable laws or by a combination of these methods. Options have a maximum term of ten years from the date of grant. The Committee has broad discretion to determine the terms and conditions upon which options may be exercised, and the Committee may determine to include additional terms in the award agreements.
Stock Appreciation Rights . SARs may be granted in connection with a previously or contemporaneously granted stock option or independently. SARs are rights to receive cash or shares of common stock, or a combination thereof, as the Committee may determine. The Committee may provide in the SAR agreement circumstances under which SARs will become immediately exercisable and may accelerate the exercisability of any SAR at any time. To date, FFN has not issued any SARs under the Plan.
SARs granted in connection with a stock option are exercisable only when and to the extent that the related stock option is exercisable and expire on the date on which the related stock option expires. If a SAR granted in
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connection with a stock option is exercised, the related stock option ceases to be exercisable. The amount of the payment for SARs granted in connection with stock options is equal to the excess of (i) the fair market value on the date of exercise of the SAR of the common stock covered by the surrendered portion of the related stock option over (ii) the exercise price of the stock option covered by the surrendered portion of the related stock option.
SARs granted independently of stock options are exercisable as specified in the award agreement. The amount of the payment for SARs granted independently of stock options is equal to the excess of (i) the fair market value of the common stock covered by the exercised portion of the SAR as of the date of such exercise over (ii) the fair market value of the common stock covered by the exercised portion of the SAR as of the last market trading date prior to the date on which the SAR was granted; provided, however, that the Committee may place limits on the aggregate amount that may be paid upon exercise of a SAR.
Stock Awards . Restricted Stock grants are awards of common stock subject to vesting restrictions and/or restrictions on transferability. Shares of common stock that are issued as restricted stock will have a legend and may not be sold, transferred, or disposed of until the restrictions have lapsed. The shares do have voting rights prior to the vesting thereof and would be entitled to receive dividends if paid by FFN prior to the vesting of the shares. The Committee has broad discretion as to the specific terms and conditions of each award, including applicable rights upon certain terminations of employment and restrictions on the transferability of stock purchased pursuant to stock purchase rights. To date, FFN has issued 30,105 restricted shares.
Cash Bonuses . Cash bonus awards entitle the grantee to cash payments based upon the achievement of employment or pre-established long-term performance factors. The Committee has discretion to determine the Participants to whom cash bonus awards are to be made, the times in which such awards are to be made, the size of such awards, and all other conditions of such awards, including any performance requirements. To date, FFN has not issued any cash bonus awards under the Plan.
Adjustments upon Change of Capitalization
Subject to any required action by FFNs shareholders, the number of shares of common stock covered by outstanding stock options, SARs, or restricted stock, and the number of shares of common stock which have been authorized for issuance under the Plan but as to which no award has been granted or which have been returned to the Plan upon cancellation or expiration of an award, as well as the price per share of common stock covered by each such outstanding award, will be proportionately adjusted for any increase or decrease in the number of issued shares of common stock resulting from a stock split, reverse stock split, stock dividend, combination or reclassification of the common stock, or any other increase or decrease in the number of issued shares of common stock effected without receipt of consideration by FFN.
Transferability
Awards may not be sold, pledged, assigned, hypothecated, transferred or disposed of in any manner other than by will or by the laws of descent or distribution and may be exercised, during the lifetime of the Participant, only by the Participant.
Amendment and Termination
The Board of Directors may amend, alter, suspend or terminate the Plan at any time. Any amendment to the Plan must be approved by the shareholders to the extent such approval is required by the terms of the Plan, the rules and regulations of the Securities and Exchange Commission, or the rules and regulations of any exchange upon which FFNs stock is listed, if any. However, no amendment, alteration, suspension or termination of the Plan may impair the rights of any Participant, unless mutually agreed in writing by the Participant and the Committee.
Federal Income Tax Consequences
The following is a summary of the material anticipated United States federal income tax consequences of the Plan to FFN and the Participants. The summary is based on current federal income tax law, which is subject to change, and does not address state, local, or foreign tax consequences or considerations.
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The grant of a stock option that does not have a readily ascertainable value will not result in taxable income at the time of the grant for either FFN or the Participant. Upon exercising an incentive stock option, the Participant will have no taxable income (except that the alternative minimum tax may apply) and FFN will receive no deduction. Upon exercising a nonqualified stock option, the Participant will recognize ordinary income in the amount by which the fair market value of common stock at the time of exercise exceeds the option exercise price, and FFN will be entitled to a deduction for the same amount. The Participants income is subject to withholding tax as wages if the Participant is an employee.
The tax treatment of the Participant upon a disposition of shares of common stock acquired through the exercise of an option is dependent upon the length of time that the shares have been held and on whether such shares were acquired by exercising an incentive stock option or a nonqualified stock option. If an employee exercises an incentive stock option and holds the shares for at least two years from the date of grant and at least one year after exercise, then any gain or loss realized based on the exercise price of the option will be treated as long-term capital gain or loss. Shares obtained upon exercise of an incentive stock option that are sold without satisfying these holding periods will be treated as shares received from the exercise of a nonqualified stock option. Generally, upon the sale of shares obtained by exercising a nonqualified stock option, the Participant will treat the gain realized on the sale as a capital gain. Generally, there will be no tax consequence to FFN in connection with the disposition of shares of common stock acquired under a stock option, except that FFN may be entitled to a deduction in the case of a disposition of shares acquired upon exercise of an incentive stock option before the applicable holding periods have been satisfied.
The grant of a SAR will not result in taxable income to the Participant at the time of the award. Upon exercising the SAR, the Participant will recognize ordinary income in the amount by which the fair market value of the common stock or the amount of cash, as the case may be, exceeds the SAR exercise price, if any. FFN will be entitled to a deduction for the same amount. The Participants income is subject to withholding tax as wages if the Participant is an employee. Upon a disposition of shares of common stock acquired through the exercise of the SAR, the Participant may recognize capital gain or loss, the character of which is dependent upon the length of time that the shares have been held. Generally, there will be no tax consequences to FFN in connection with the disposition of shares of common stock acquired under a SAR.
The federal income tax consequences of awards of restricted stock will depend on the facts and circumstances of each award, and in particular, the nature of the restrictions imposed with respect to the common stock, which is the subject of the award. In general, if the common stock is subject to a substantial risk of forfeiture, i.e., limited in terms of transferability, a taxable event occurs only when the risk of forfeiture lapses. At that time, the Participant will recognize ordinary income to the extent of the excess of the fair market value of the common stock on the date the risk ceases over the amount that the Participant paid for the shares, if any, and FFN will be entitled to a deduction in the same amount. Prior to the lapse of restrictions on the restricted stock, any dividends on such shares will be paid currently and will be treated as ordinary compensation income to the Participant, subject to withholding. Subsequent to the determination and satisfaction of the ordinary income tax consequences, any further gain or loss realized on the subsequent disposition of such stock will be a long- or short-term capital gain or loss depending upon the applicable holding period.
Alternatively, within thirty days after transfer of the restricted stock, a Participant may make an election under Section 83(b) of the Code, which would allow the Participant to include in income in the year that the restricted common stock is awarded an amount equal to the fair market value of the restricted stock on the date of such award determined as if the restricted common stock were not subject to restrictions. FFN is then entitled to a compensation-paid deduction in the same amount. The election is required to be written and delivered to FFN within that thirty-day period. The Participant is also required to confirm the election with the filing of the Participants federal income tax return for the year in which the award is made. Failure to satisfy either of these requirements may invalidate the intended election. In the event of a valid Section 83(b) election, the Participant will not recognize income at the time that the restrictions actually lapse. In addition, any appreciation or depreciation in the value of the stock and any dividends paid on the stock after a valid Section 83(b) election are not deductible by FFN as compensation paid. For purposes of determining the period of time that the Participant holds the restricted stock, the holding period begins on the award date when a Participant makes a Section 83(b) election. Further, any dividends received after the Section 83(b) election is made will constitute ordinary dividend income to the Participant and will not be deductible by FFN. If the restricted stock subject to the Section 83(b) election is subsequently forfeited, however, the Participant is not entitled to a deduction or tax refund.
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A Participant will realize ordinary compensation income upon receipt of a cash bonus award equaling the amount of cash received. Wage withholding rules will apply. FFN will be entitled to a deduction at the time of payment in an amount equal to such income.
Award Grants
The grant of awards under the Plan is at the discretion of the Committee. The Committee has made awards of Incentive Stock Options, Nonqualified Stock Options, and restricted shares. Effective as of June 1, 2012, the aggregate number of shares of common stock reserved for equity incentive awards for employees and others pursuant to the Plan was increased from 1,000,000 to 1,500,000. Outstanding options and restricted shares were issued in the following amounts to the described groups of individuals:
2007-September 30, 2013: | ||||
Total Granted Non-employee Directors |
89,300 | |||
Total Granted Employees |
1,111,141 | |||
Total Forfeited or expired |
(217,937 | ) | ||
Total Exercised |
(5,755 | ) | ||
|
|
|||
Total outstanding equity incentive awards at 09/30/13 |
976,749 | |||
|
|
Summary Compensation Table
The table below shows the compensation for services in all capacities we paid during the years ended December 31, 2013 and 2012, to our Chief Executive Officer and our other two most highly compensated executive officers (which we refer to as named executive officers):
Name and Principal Position |
Year |
Salary
($) |
Bonus
($) |
Stock
Awards ($) (1) |
Option
Awards ($) (1) |
All Other
Compensation ($) |
Total
($) |
|||||||||||||||||||||
Richard E. Herrington, Chief Executive Officer |
|
2013
2012 |
|
$
|
313,207
292,717 |
|
$
|
7,245
5,939 |
|
$
|
38,649
|
|
$
|
20,973
25,744 |
|
$
|
56,356
38,303 |
(2)
(2) |
$
|
436,430
362,703 |
|
|||||||
Sally E. Bowers, EVP, Chief Mortgage Officer |
|
2013
2012 |
|
|
130,000
130,000 |
|
|
5,241
|
|
|
14,287
|
|
|
6,743
10,589 |
|
|
230,754
212,185 |
(3)
(3) |
|
387,025
352,774 |
|
|||||||
Joseph H. Bowman, Chief Lending Officer |
|
2013
2012 |
|
|
199,296
192,092 |
|
|
4,567
|
|
|
28,210
|
|
|
13,221
19,986 |
|
|
11,968
10,936 |
(4)
(4) |
|
257,262
223,014 |
|
(1) | The amounts in the Stock Awards and Option Awards columns represent grant date fair values computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, Stock Compensation (FASB ASC Topic 718). The assumptions used in determining the values of stock awards and option awards are provided in Note 12 to FFNs Consolidated Financial Statements contained elsewhere in this joint proxy statement/prospectus. |
(2) | Includes $10,200 and $10,000 of 401(k) company matching contributions, $3,045 and $2,507 of life insurance premiums, and $4,500 and $3,000 of director fees for 2013 and 2012, respectively. Also includes the following perquisites: |
Company car
allowance |
Country club
memberships |
Spouse
Travel |
||||||||||
2013 |
$ | 10,850 | $ | 12,963 | $ | 14,798 | ||||||
2012 |
10,500 | 7,985 | 4,311 |
(3) | Includes $10,200 and $10,000 of 401(k) company matching contributions, $592 and $552 of life insurance premiums, and $219,962 and $201,633 in commissions for 2013 and 2012, respectively. |
(4) | Includes $8,494 and $8,340 of 401(k) company matching contributions, $1,645 and $1,387 of life insurance premiums, and $1,829 and $1,209 in commissions for 2013 and 2012, respectively. |
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Outstanding Equity Awards at Fiscal Year-End
The following tables show the number of equity awards outstanding as of December 31, 2013 for our named executive officers.
Option Awards | Stock Awards | |||||||||||||||||||||||||||||||||||
Name |
Number of Securities Underlying Unexercised Options (#) Exercisable |
Number of Securities Underlying Unexercised Options (#) Unexercisable (1) |
Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#) |
Option Exercise Price ($) |
Option Expiration Date (2) |
Number
of
or Units of Stock
That
Not
(#) (3) |
Market Value of
Shares
Units of Stock
That
Not Vested ($) |
Equity Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have
Not
(#) |
Equity Incentive Plan Awards: Market or Payout Value of Unearned Shares, Units or Other Rights That Have Not Vested ($) |
|||||||||||||||||||||||||||
Richard E. Herrington |
39,375 | | | $ | 10.00 | 12/20/2017 | 2,973 | $ | 38,649 | | | |||||||||||||||||||||||||
3,508 | | | 10.00 | 02/20/2018 | ||||||||||||||||||||||||||||||||
17,950 | 4,487 | | 11.75 | 06/15/2019 | ||||||||||||||||||||||||||||||||
1,542 | 3,085 | | 10.00 | 07/22/2020 | ||||||||||||||||||||||||||||||||
4,694 | 7,041 | | 10.50 | 06/02/2021 | ||||||||||||||||||||||||||||||||
4,363 | 17,454 | | 12.00 | 06/01/2022 | ||||||||||||||||||||||||||||||||
| 10,867 | | 13.00 | 05/31/2023 | ||||||||||||||||||||||||||||||||
Sally E. Bowers |
9,375 | | | $ | 10.00 | 12/20/2017 | 1,099 | $ | 14,287 | | | |||||||||||||||||||||||||
638 | | | 10.00 | 02/20/2018 | ||||||||||||||||||||||||||||||||
8,921 | 2,230 | | 11.75 | 06/15/2019 | ||||||||||||||||||||||||||||||||
2,175 | 1,450 | | 10.00 | 07/22/2020 | ||||||||||||||||||||||||||||||||
2,100 | 3,150 | | 10.50 | 06/02/2021 | ||||||||||||||||||||||||||||||||
1,795 | 7,179 | | 12.00 | 06/01/2022 | ||||||||||||||||||||||||||||||||
| 3,494 | | 13.00 | 05/31/2023 | ||||||||||||||||||||||||||||||||
Joseph H. Bowman |
951 | 951 | | $ | 11.75 | 06/15/2019 | 2,170 | $ | 28,210 | | | |||||||||||||||||||||||||
1,315 | 2,630 | | 10.00 | 07/22/2020 | ||||||||||||||||||||||||||||||||
1,871 | 5,614 | | 10.50 | 06/02/2021 | ||||||||||||||||||||||||||||||||
3,387 | 13,550 | | 12.00 | 06/01/2022 | ||||||||||||||||||||||||||||||||
| 6,850 | | 13.00 | 05/31/2023 |
(1) | Options vest in five equal increments beginning on the first anniversary of grant. |
(2) | The expiration date of each option occurs ten years after the date of grant for each option. |
(3) | Restricted stocks awards were granted on May 31, 2013, as part of FSBs equity incentive plan and vest in 5 equal increments over 5 years. |
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Outside Director Compensation Table for 2013
Name |
Fees Earned
or Paid in Cash ($) |
Stock
Awards ($) |
Option
Awards ($) (1) (2) |
Non-Equity
Incentive Plan Compensation ($) |
Nonqualified
Deferred Compensation Earnings ($) |
All Other
Compensation ($) |
Total ($) | |||||||||||||||||||||
Henry W. Brockman, Jr. |
$ | 3,500 | | $ | 4,777 | | | | $ | 8,277 | ||||||||||||||||||
James W. Cross, IV |
3,500 | | 4,777 | | | | 8,277 | |||||||||||||||||||||
Dr. David H. Kemp |
4,375 | | 4,777 | | | | 9,152 | |||||||||||||||||||||
Paul M. Pratt, Jr. |
3,500 | | 4,777 | | | | 8,277 | |||||||||||||||||||||
Melody J. Smiley |
4,375 | | 4,777 | | | | 9,152 | |||||||||||||||||||||
Pamela J. Stephens |
3,500 | | 4,777 | | | | 8,277 |
(1) | The aggregate number of option awards outstanding at December 31, 2013, to outside directors were as follows: |
Henry W. Brockman, Jr. |
15,375 | |||
James W. Cross, IV |
6,000 | |||
Dr. David H. Kemp |
16,625 | |||
Paul M. Pratt, Jr. |
16,625 | |||
Melody J. Smiley |
5,550 | |||
Pamela J. Stephens |
6,000 |
(2) | The amounts in the Option Awards column represent grant date fair values computed in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, Stock Compensation (FASB ASC Topic 718). The assumptions used in determining the values of option awards are provided in Note 12 to FFNs Consolidated Financial Statements contained elsewhere in this joint proxy statement/prospectus. |
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
During the last fiscal year, the entire board of directors of FFN performed the functions of the Compensation Committee. None of FFNs executive officers has ever served as a director of another entity any of whose executive officers served on FFNs Compensation Committee.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS OF FFN
FSB has had, and expects to have in the future, loans and other banking transactions in the ordinary course of business with directors (including our independent directors) and executive officers of FFN and its subsidiaries, including members of their families or corporations, partnerships or other organizations in which such officers or directors have a controlling interest. These loans are made on substantially the same terms (including interest rates and collateral) as those available at the time for comparable transactions with persons not related to the bank and did not involve more than the normal risk of collectability or present other unfavorable features.
In addition, FSB is subject to the provisions of Section 23A of the Federal Reserve Act, which places limits on the amount of loans or extensions of credit to, or investments in, or certain other transactions with, affiliates and on the amount of advances to third parties collateralized by the securities or obligations of affiliates. FSB is also subject to the provisions of Section 23B of the Federal Reserve Act which, among other things, prohibits an institution from engaging in certain transactions with certain affiliates unless the transactions are on terms substantially the same, or at least as favorable to such institution or its subsidiaries, as those prevailing at the time for comparable transactions with nonaffiliated companies.
Certain Transactions with Management
Banking transactions with directors, officers, and employees may be performed in the ordinary course of business. Any extensions of credit to these individuals is made on the same terms, including interest rates and collateral, as those prevailing at the time for comparable transactions with other persons and will not involve more than the normal risk of repayment. Outstanding loans to executive officers, directors, principal shareholders, and companies with whom they are associated as of September 30, 2013, were $7.2 million.
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The officers and directors are required to devote only so much of their time to the business of FSB and FFN as in their judgment is reasonably required. The officers and directors, and their affiliates, may engage, and are presently engaging, for their own accounts in other business ventures, including management and the formation of other corporations or ventures. Such activities may result in conflicts of interest.
Based on competitive bids, FFN is using Full Service Insurance to provide various insurance coverage including health, directors and officers liability, personal property and bond coverage. Full Service Insurance is an affiliate of Paul M. Pratt, Jr., one of the directors of FFN.
FSB leases a facility from Columbia Avenue Partners in Downtown Franklin to house the main office, corporate headquarters, and operational areas. Columbia Avenue Partners is an affiliate of Henry W. Brockman, Dr. David H. Kemp, and, until December 31, 2013, Paul M. Pratt, Jr., each of whom are directors of FFN and FSB. The Bank received a third party review to assure lease rates and terms are competitive. In early 2013, construction began on an additional operations facility adjacent to FSBs 722 Columbia Avenue headquarters. This property will be leased from Columbia Avenue Partners with an anticipated earliest occupancy date of March 2014. In addition to the Columbia Avenue offices, FSBs has signed a lease with Berry Farms Real Estate Partnership, LLC, consisting of directors Brockman, Kemp, and, until December 31, 2013, Pratt, for FSBs Berry Farms branch, which opened in September 2013. In June 2013, FSB entered into an agreement with Brentwood Town Center Real Estate Partners, LLC, comprised of directors Brockman and Kemp to relocate FSBs Brentwood branch. The lease will likely commence in late 2014.
Century Construction Company was contracted by Columbia Avenue Partners, LLC to provide the leasehold improvement build-out for the current Columbia Avenue facility and is also providing the build-out for the new adjacent operations center. Additionally, Century Construction was contracted by Berry Farms Real Estate Partners, LLC for the construction of FSBs recently opened Berry Farms branch. Century Construction Company is an affiliate of James W. Cross, IV, a director of FFN and FSB.
Description of MidSouth
MidSouth Bank (MidSouth) is a commercial bank with deposits insured through the FDIC. MidSouth is chartered under the Tennessee Banking Act and, as a member of the Federal Reserve System, it is subject to examination, supervision and regulation by the Board of Governors of the FRB and by the TDFI. MidSouth initially opened as a full-service commercial bank in January of 2004 and recently celebrated its tenth anniversary.
Since it opened for business, MidSouth has focused on developing its financial services business in Rutherford County in Tennessee and in other areas (generally, in contiguous counties). MidSouth provides a wide range of commercial banking services to small- and medium-sized businesses, including those engaged in the real estate development business, business executives, professionals and other individuals. MidSouth operates throughout Rutherford County in Tennessee, with five offices located in that county.
MidSouth focuses its business in Rutherford County and surrounding areas in the Nashville-Davidson-Murfreesboro-Franklin, Tennessee Metropolitan Statistical Area (Nashville MSA). MidSouths primary source of income in the first three quarters of 2013 was its earnings principally derived from interest income from loans and returns from its investment portfolio. MidSouth derived approximately 74.72% of its gross revenues from interest income and approximately 25.28% from fees and other non-interest sources (both percentages unaudited). All amounts in this section are in thousands, except per share data or unless otherwise indicated.
At September 30, 2013, MidSouth had total assets of approximately $261,029 and total stockholders equity of $27,993. At September 30, 2013, MidSouths total loans (net of allowance for loan losses of $2,860) were $152,121 (unaudited) and its total deposits were $231,444 (unaudited). MidSouth reported net earnings of $1,601 for fiscal 2012 and net earnings of $1,482 through September 30, 2013 (unaudited). As of September 30, 2013, $9,150 in Bank-owned investment securities were pledged to secure deposits from governmental units or agencies
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that require security for their deposits, or for other lawful purposes. Additional information concerning MidSouths business since the beginning of MidSouths last fiscal year is set forth below under the caption MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations, and in the financial statements included elsewhere in this joint proxy statement/prospectus.
The principal executive offices of MidSouth are located at One East College Street, Murfreesboro, Tennessee 37130, telephone (615) 278-7100.
MidSouth Bank maintains an Internet website at www.midsouthbanking.com on which it makes available, free of charge, its Annual Report to Stockholders, Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and all amendments to the foregoing as soon as reasonably practicable after these reports are filed with, or furnished to, the FRB.
MidSouths Business in General
As a commercial bank, MidSouth Bank accepts deposits and uses those funds, together with its capital and earnings, to make loans and investments and to operate its business. The availability of funds to MidSouth is primarily dependent upon the economic policies of the government, the economy in general and the general credit market for deposits. MidSouth may in the future engage in various business activities permitted to commercial banks and their subsidiaries, either directly, through one or more subsidiaries, or through acquisitions. MidSouth intends to provide banking and financial services in Rutherford County and surrounding areas of Middle Tennessee, primarily in the Nashville MSA trade area, but it may elect to branch into other counties and to expand its marketplace.
MidSouth Products and Services
MidSouth operates five banking offices and one mortgage lending office, all of which are located in Rutherford County, Tennessee. MidSouth is an independent community bank providing a complete range of retail and commercial banking services to businesses and individuals in its market areas. As a community bank, MidSouth believes that it is necessary not only to use the best technology available to it but also to have sufficient staff to develop ongoing relationships with MidSouths customers and communities. MidSouth has implemented mobile banking and online banking services that MidSouths management believes are extremely competitive in the MSA.
Services offered are essentially the same as those offered by the national and regional institutions that compete with MidSouth and include checking, savings, money market deposit accounts, and certificates of deposit, business loans, personal loans, mortgage loans, lines of credit, and consumer-oriented retirement accounts including individual retirement accounts (IRAs) and employee benefit accounts. In addition, MidSouth provides full brokerage services through a networking arrangement with Raymond James Financial Services, Inc., a full service broker-dealer. MidSouth also provides safe deposit and night depository facilities. MidSouth operates a trust department that provides trust services. MidSouths deposits are insured by the FDIC.
Lending Activities MidSouth engages in both commercial and consumer lending activities. MidSouths commercial loans are primarily secured by real estate, commercial equipment, vehicles or other assets of the borrower. Repayment is often dependent on the successful business operations of the borrower and may be affected by adverse conditions in the local economy or real estate market. The financial condition and cash flow of commercial borrowers is therefore carefully analyzed during the loan approval process, and continues to be monitored throughout the duration of the loan by obtaining business financial statements, personal financial statements and income tax returns. The frequency of this ongoing analysis depends upon the size and complexity of the credit and collateral that secures the loan. It is also MidSouths general policy to obtain personal guarantees from the principals of the commercial loan borrowers.
Commercial real estate (CRE) loans are primarily those secured by land for residential and commercial development, agricultural purpose properties, service industry buildings such as restaurants and motels, retail buildings and general purpose business space. MidSouth attempts to mitigate the risks associated with these loans through low loan to value ratio standards, thorough financial analyses, and managements knowledge of the local economy in which MidSouth lends. However, MidSouths management recognizes that residential and commercial real estate development has historically been an important component of its local banking market and management expects that this area of lending will remain important to MidSouths communities in the future. In order to meet the
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demands of many of MidSouths existing and future customers, management expects to continue to apply the lessons learned in the recent real-estate downturn and to balance the goal of meeting customers needs with prudent underwriting and risk management.
MidSouths residential mortgage portfolio is distributed between variable and fixed rate loans. Many loans are booked at fixed rates in order to meet MidSouths requirements under the Community Reinvestment Act or to complement MidSouths asset liability mix. Other fixed rate residential mortgage loans are originated in a brokering capacity on behalf of other financial institutions, for which MidSouth receives a fee. As with any consumer loan, repayment is dependent on the borrowers continuing financial stability, which can be adversely impacted by job loss, divorce, illness, or personal bankruptcy. Residential mortgage loans exceeding an internal loan-to-value ratio require private mortgage insurance. Title insurance protecting MidSouths lien priority, as well as fire and casualty insurance, is also required.
Home equity lines of credit, included within the residential mortgage portfolio, are secured by the borrowers home and can be drawn on at the discretion of the borrower. These lines of credit are at variable interest rates.
MidSouth also provides residential real estate construction loans to builders and individuals for single family dwellings. Residential construction loans are usually granted based upon as completed appraisals and are secured by the property under construction. Site inspections are performed to determine pre-specified stages of completion before loan proceeds are disbursed. These loans typically have maturities of twelve months or less and may have a fixed or variable rate. Permanent financing for individuals offered by MidSouth includes fixed and variable rate loans with three or five year adjustable rate mortgages.
A variety of other consumer loans are also offered to MidSouth customers, including indirect and direct auto loans, and other secured and unsecured lines of credit and term loans. Careful analysis of an applicants creditworthiness is performed before granting credit, and on-going monitoring of loans outstanding is performed in an effort to minimize risk of loss by identifying problem loans early.
An allowance for loan losses is maintained to provide for anticipated losses from MidSouths lending activities. Losses are an endemic part of commercial and consumer banking. MidSouth seeks to manage the level of losses that MidSouth incurs by careful underwriting, needed collateral and documentation, and appropriate monitoring. A complete discussion of the factors considered in determination of the allowance for loan losses is included in section entitled MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations.
Deposit Activities
MidSouth offers a full array of deposit products including checking, savings and money market accounts, regular and IRA certificates of deposit, and savings accounts. MidSouth also offers the Certificate of Deposit Account Registry Service ® , or CDARS ® , program to municipalities, businesses, and consumers through which MidSouth provides access to multi-million-dollar certificates of deposit that are FDIC-insured. In addition, MidSouth offers its commercial customers packages which include Treasury Management, Cash Sweep and various checking opportunities.
Information about MidSouths income from and assets related to its banking business may be found in the Consolidated Statements of Financial Condition and the Consolidated Statements of Income and the related notes thereto included in this document.
Trust Services
MidSouths Trust Department offers a full range of trust services, including personal trust, investment agency accounts, charitable trusts, retirement accounts including IRA roll-overs, 401(k) accounts and defined benefit plans, estate administration and estate planning. At September 30, 2013 and December 31, 2012, the total market value of assets under the supervision of MidSouths Trust Department was approximately $7.10 million and $7.18 million, respectively. Trust Department revenues for these periods are included in other fees and commissions in MidSouths Consolidated Statements of Income.
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MidSouth is subject to extensive supervision and regulation by federal and state banking agencies. Its operations are subject to a wide array of federal and state laws applicable to financial services, to banks, to consumer rights, to privacy, and to lending. The section SUPERVISION AND REGULATION set forth above provides detailed information on the types of laws, rules, regulations, supervision and regulation under which MidSouth operates, except that MidSouth is not a bank holding company and the description of matters related strictly to bank holding companies like FFN may not be directly applicable to MidSouth.
There have been many legislative and regulatory proposals designed to overhaul or otherwise improve the federal deposit insurance system and to improve the overall financial stability of the banking system in the United States. Some of these proposals provide for changes in the bank regulatory structure, including proposals to reduce regulatory burdens on banking organizations and to expand (or to limit) the nature of products and services banks and bank holding companies may offer. Certain recently-adopted pieces of legislation are summarized above under Supervision and Regulation. It is not possible to predict whether or in what form any proposals may be adopted in the future, and, if adopted, their impact upon either MidSouth or the financial services industries in which MidSouth competes.
Please refer also to the Consolidated Financial Statements for additional, important information concerning MidSouth.
MidSouth Capital Requirements
Capital requirements are important to banks. Please refer to MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations - Capital Position and Dividends below.
MidSouths Recent Operating Results
The recent economic recession had a significant negative impact on many financial institutions, including MidSouth. During 2011, MidSouths credit quality in the loan portfolio began to improve, and MidSouth experienced less charge-off activity than during the previous two years. During 2011, MidSouth recorded charge-offs of $1,943, while adding $400 to the allowance for loan losses for the current year provision. During 2012, MidSouth experienced substantial recoveries of previously charged off loans, ending the year with net recoveries of $275, which affected MidSouths allowance for loan and lease losses to the extent that there was a current year negative provision of $470, which was credited to MidSouths provision for loan losses.
Banks calculate the risk in their loan portfolios on an on-going basis and make changes to their allowance for loan and lease losses. MidSouth reduced its provisions to MidSouths allowance for loan losses in 2012 and continued to evaluate any additional changes to the allowance for loan and lease losses for 2013 and beyond. See MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations. MidSouth reported earnings of $1,601 for 2012 and $1,482 for the 2013 year-to-date period ending September 30, 2013. MidSouths continued improvement in earnings is attributable in part to the reduction of the provision for loan losses required in 2012 and 2013 based on managements assessment of MidSouths loan portfolio and its allowance for loan and lease losses as well as its loan growth.
Sources and Availability of Funds
Please refer to the section entitled MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations set forth below in this document.
Subsidiary
MidSouth has one, wholly-owned, subsidiary known as MSB Services, Inc., which provides credit life insurance services for MidSouth and for loan customers.
Public Company Reporting
The shares of common stock of MidSouth are registered with the FRB under Section 12(g) of the Exchange Act, although they are not listed or traded on any recognized or established securities trading market. MidSouth is subject to information reporting requirements, proxy solicitation requirements, insider trading restrictions and other
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requirements of the Exchange Act, including the requirements imposed under the federal Sarbanes-Oxley Act of 2002, and rules adopted by NASDAQ as they relate to MidSouths evaluation of the independence and financial expertise of the members of its Audit Committee. Among other things, loans to and other transactions with insiders are subject to restrictions and heightened disclosure, directors and certain committees of the MidSouth board must satisfy certain independence requirements, and MidSouth must comply with certain corporate governance requirements.
In accordance with the Exchange Act and other related laws, MidSouth Bank files reports with the FRB as a smaller reporting company. These include annual and quarterly reports (now, Forms 10-K and 10-Q) as well as current reports on Form 8-K and amendments to those reports, if any. MidSouth is also subject to the proxy and other rules and regulations under the Exchange Act. It is expected that FFN will be subject to these public company reporting rules at some time after the merger is completed.
MidSouth Corporate Governance
MidSouth is a Tennessee banking corporation. It is governed by a board of directors of 17 directors. Under MidSouths Charter, as amended, its board of directors is divided into three groups (called Classes) of directors. Because approximately one third of the board members are to be elected each year, MidSouth has arbitrarily divided them into three Director Classes. Each nominee will be designated as a member of a particular Director Class, and such nominee, if elected, will stand for re-election every three years along with her or his Director Class.
The Director Classes are the following:
(1) Director Class I has five members: Roseann H. Barton, D. Gerald Coggin, Sr., Lee M. Moss, Dr. George W. Smith, and Gregory E. Waldron. The terms for Director Class I are scheduled to expire at the time of the Annual Meeting in 2015;
(2) Director Class II has six members: Daniel B. Decker, John D. Floyd, Donald R. Gintzig, Brian F. Kidd, Dr. Max L. Moss, Jr., and Matthias B. Murfree, III. The terms for Director Class II are scheduled to expire at the time of the Annual Meeting in 2016; and
(3) Director Class III has six members: Donald W. Alexander, Jimmy E. Allen, Dallas G. Caudle, Jr., Beth S. OBrien, Stephen A. Steele, and Paula B. Thomas. The terms for Director Class III are scheduled to expire at the time of the Annual Meeting in 2014.
Vacancies on the board may be filled by a majority vote of the remaining directors. The board of directors acts as its own nominating committee for the nomination of candidates for election as directors. Nominations can also be made by shareholders.
Under Tennessee law, bank directors must, during each directors whole term of service, be a citizen of the United States. A majority of the directors must reside in a state in which MidSouth has a branch location or within 100 miles of the location of any branch, both for at least one year immediately preceding their election and during their term of service as a director. All of the MidSouth directors meet these qualifications. During a term, the board may elect a new director to fill any vacant spot, including a vacancy caused by an increase in the size of the board; however, any increase in the size of the MidSouth board requires a vote of a majority of the then-sitting directors and any member so added must stand for election in his or her Director Class at the next Annual Meeting.
MidSouths board is comprised of a majority of directors (15 of 17) who qualify as independent directors pursuant to the corporate governance standards listed in the NASDAQ OMX Listing Rules. (In determining independence pursuant to these standards, the board has elected to use the independence standards that it applies to its Audit Committee, even though MidSouths common stock is not listed on the NASDAQ or on any other recognized securities exchange.) Each year the board affirmatively determines whether directors have direct or indirect material relationships with MidSouth, including its subsidiaries, that may interfere with their ability to exercise their independence from MidSouth. When assessing the materiality of a directors relationship with MidSouth, the board considers all relevant facts and circumstances, not merely from the directors standpoint, but from that of the persons or organizations with which the director has an affiliation. Material relationships can include employment, commercial, industrial, banking, consulting, legal, accounting, charitable and familial
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relationships. Two of the MidSouth directors, Lee M. Moss, Chairman and Chief Executive Officer, and Dallas G. Caudle, Jr., President and Chief Operating Officer, are employees and are involved in directing MidSouths day-to-day activities, and they are, thus, not considered to be independent directors.
The MidSouth board meets monthly and at call for special meetings. The board of directors held 12 regular meetings and one special meeting last year. A majority of the members constitutes a quorum, and a majority of those directors who are present and voting at a meeting can generally cast the deciding vote on each matter considered. Directors cannot vote or act by proxy in connection with a board meeting. Directors may act by written consent in accordance with law. In 2013, all directors except Mr. Gintzig (who was on leave serving in the United States Navy as Rear Admiral (Deputy Chief, Navy Medicine) during the first part of 2013) attended at least 75% of board meetings and two directors failed to attend at least 75% of the aggregate number of the board and assigned committee meetings, including Mr. Gintzig, who, as noted above, was on leave during part of 2013, and Mr. Coggin, who was absent due to a heavy travel scheduled relative to his primary business activities. In February of 2009, MidSouths directors voted to suspend all board and committee fees beginning March of 2009. Directors received no fees for board or board committee meetings in 2010, 2011, or the first six months of 2012. Board and committee fees were reinstated in July 2012. All directors receive a $250 monthly retainer and are paid $250 for each meeting attended. Non-employee members of MidSouths audit and executive committees each receive a $250 fee for each meeting attended. Board and committee fees are paid monthly. MidSouths non-management directors reserve the right to meet at regularly scheduled executive sessions and may hold such additional executive sessions as they determine necessary or appropriate. No such meetings were deemed necessary or held in 2013.
MidSouth has adopted a Code of Ethics which is applicable to all directors, officers and other employees of MidSouth, including the principal executive officer, the principal financial officer and the principal accounting officer. The Code of Ethics is available for inspection by shareholders. MidSouth intends to give notices of amendments to or waivers from its Code of Ethics (to the extent applicable to MidSouths directors, principal executive officer, principal financial officer or principal accounting officer) by appropriate filings on Form 8-K.
The board represents the interests of MidSouths stockholders by overseeing the Chief Executive Officer and other members of senior management in the operation of MidSouth. The boards goal is to optimize long-term value by providing guidance and strategic oversight to MidSouth on behalf of MidSouth shareholders. Generally, MidSouth requires that its directors have extensive business experience, outstanding reputations in their industries, diverse views, knowledge of the communities in which MidSouth operates, and an understanding of financial matters.
Name |
Age |
Profession |
||
Donald W. Alexander |
61 | Automobile Dealer | ||
Jimmy E. Allen* |
73 | Trucking | ||
Roseann H. Barton |
51 | School Principal | ||
Dallas G. Caudle, Jr. |
66 | Banker | ||
D. Gerald Coggin, Sr. |
62 | Healthcare | ||
Daniel B. Decker |
60 | Builder-Developer | ||
John D. Floyd |
53 | Builder-Developer | ||
Donald R. Gintzig |
55 | Rear Admiral, US Navy; Deputy Chief, Navy Medicine | ||
Brian F. Kidd |
38 | Accounting; Healthcare | ||
Lee M. Moss* |
62 | Banker | ||
Dr. Max L. Moss, Jr. |
51 | Physician; Builder-Developer | ||
Matthias B. Murfree, III* |
69 | Attorney | ||
Beth S. OBrien |
56 | Realtor |
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Name |
Age |
Profession |
||
Dr. George W. Smith | 65 | Physician | ||
Stephen A. Steele |
57 | Engineer | ||
Paula B. Thomas, Ph.D. |
57 | Accounting Professor | ||
Gregory E. Waldron |
51 | Builder-Developer |
* | This director is expected to be elected to the FFN and FSB boards of directors if and when the merger is completed. |
The Committees of the MidSouth Board of Directors
The MidSouth board of directors has multiple standing committees. At the present time, the primary board committees are the Loan/Compliance/Executive Committee, the Audit Committee and the Compensation Committee. The membership of these committees is determined by the board of directors. The reports and minutes of these committees are periodically received and considered by the board of directors at its meetings. The board may create, terminate, or establish various committees from time to time.
The Loan/Compliance/Executive Committee is charged with establishing general guidelines governing all extensions of credit within parameters set by the board of directors, as well as monitoring MidSouths compliance with the requirements imposed by its regulators. This committee reviews all director-related loans and all other extensions of credit under the boards direction. Loan requests exceeding individual officers lending limits are referred for prior approval to this committee in conformance with written lending policies adopted by the board of directors. This committee meets bi-weekly and at call. The Loan/Compliance/Executive Committee is generally authorized to perform a wide variety of functions for the board of directors and to act for and on behalf of the full board when the board of directors is not in session. In 2013, the members of the Loan/Compliance/Executive Committee were Donald W. Alexander, Lee M. Moss, Executive Chairman, Dallas G. Caudle, Jr., Loan Chairman, Gregory E. Waldron, Vice Chairman, Matthias B. Murfree, III, Daniel B. Decker (alternate) and Jimmy E. Allen (alternate). This committee has two scheduled meetings each month and also meets on call.
MidSouths Compensation Committee
MidSouths Compensation and Personnel Committee is made up of D. Gerald Coggin, Sr., Chair, Donald W. Alexander, Brian F. Kidd, Dr. Max L. Moss, Jr., and Dr. George W. Smith, all of whom are independent members of MidSouths board of directors. The Compensation Committee is empowered to review and approve, or in some cases recommend for the approval of the full board of directors, the annual compensation and compensation procedures for the chief executive officer and the president of MidSouth. In 2013, the Compensation Committee met one time. As noted in the section The Committees of the MidSouths Board of Directors, matters dealing with compensation and other personnel-related issues were conducted in conjunction with meetings of either the Loan/Compliance/Executive Committee or the full MidSouth board of directors. The Compensation Committee has not adopted a charter.
MidSouths executive management provides recommendations to the Compensation Committee as to most management compensation matters, including executive and director compensation; however, the Compensation Committee does not delegate any of its functions to others in setting compensation. The Compensation Committee has the authority to obtain the advice of an external compensation consultant although it has never done so in the past.
MidSouths Audit Committee
MidSouth has a separately-designated standing audit committee established in accordance with Section 3(a)(58)(A) of the Exchange Act. The members of the audit committee in 2013 were Paula D. Thomas, Chair, D. Gerald Coggin, Sr., Donald R. Gintzig, and Brian F. Kidd. Director Gregory E. Waldron serves as an alternate member of the committee. The board has designated Paula B. Thomas and Brian F. Kidd as audit committee financial experts as defined by the rules of the SEC, although this designation does not impose greater
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responsibilities on these persons than on any other member of the audit committee. MidSouths board of directors has determined that all of these persons are independent within the meaning of the rules of the Securities and Exchange Commission (SEC), NASDAQ OMX Listing Rules 5605(a)(2) and 5605(c)(2), as well as Section 10A of the Exchange Act, and the audit committees charter. The board has not yet determined that each of the members of the audit committee is financially literate as defined by the NASDAQ listing standards.
The audit committee operates under a written charter adopted by the Board, which is published with this proxy statement at least every three years and upon any major revision of the charter. The charter was substantially amended in 2011 and a copy of the revised charter was included as Appendix A to MidSouths 2012 proxy statement. A copy of the audit committee charter can be obtained by shareholders without charge by contacting Kevin D. Busbey, Executive Vice President and CFO, at (615) 278-7100. The audit committee charter is also available on MidSouths website at www.midsouthbanking.com. (As noted, although textual references may be made to MidSouths website, none of the contents of that website are incorporated herein by reference.)
Pursuant to its charter, the audit committee is responsible for pre-approving all auditing services and permitted non-audit services to be performed during 2013, or thereafter, for MidSouth by its independent registered public accounting firm or any other auditing or accounting firm, except as described below. The audit committee has established general guidelines for the permissible scope and nature of any permitted non-audit services in connection with its annual review of the audit plan and will review such guidelines with the MidSouth board of directors. Pre-approval may be granted by action of the full audit committee or, in the absence of such audit committee action, by the audit committee Chairman whose action shall be considered to be that of the entire audit committee. In the absence of the audit committee Chair, the audit committee has been granted such authority to Brian F. Kidd. Pre-approval shall not be required for the provision of non-audit services if (i) the aggregate amount of all such non-audit services constitute no more than 5% of the total amount of revenues paid by MidSouth to the independent registered public accounting firm during the fiscal year in which the non-audit services are provided, (ii) such services were not recognized by MidSouth at the time of engagement to be non-audit services, and (iii) such services are promptly brought to the attention of the audit committee and approved prior to the completion of the audit. Services such as audit of financial statements and the review of managements assessment of internal controls, assistance with computations of fair market value disclosures, review of periodic and current reports that will be required once MidSouth has registered its common stock under the Securities Exchange Act (such as Reports on Form 10-Q and Form 8-K), preparation of reports to the Board of Governors of the Federal Reserve System, and preparation of federal and state tax returns (among others) have been pre-approved by the audit committee. In connection with MidSouths annual meeting of shareholders, the MidSouth audit committee issues a report to shareholders.
Shareholder Communications to the MidSouth Board of Directors
The MidSouth board of directors believes it is important for shareholders and others to have a process to send communications to the board or to specific members of the board. Accordingly, any shareholder or other interested party who desires to communicate with MidSouths board of directors, any individual director, or the independent or non-management directors as a group, may do so by regular mail or by e-mail directed to the Secretary of MidSouth. The mailing address of MidSouths Corporate Secretary is: MidSouth Bank, Attention: Corporate Secretary, One East College Street, Post Office Box 7100, Murfreesboro, Tennessee 37133-7100; the Secretarys e-mail address is info@midsouthbanking.com. Communications intended for non-management directors should be directed to the Chair of the audit committee at such address. Presently, the Chair of the audit committee is Paula B. Thomas. Upon receiving mail addressed to the board, the Corporate Secretary will assess the appropriate director or directors to receive the message, and will forward the mail to such director or directors without editing or altering it.
MidSouths Director Nomination Process
The board as a whole is responsible for nominating individuals for election to the board by the shareholders and for filling vacancies on the board that may occur between annual meetings of the shareholders. The board is also responsible for developing and approving criteria nominating new candidates and for re-nominating incumbent candidates for board membership. The board has not adopted a charter for a nominating committee or formal procedures for considering or evaluating board candidates; however, the board believes that the informal considerations described below are sufficient to serve MidSouths needs in its marketplace.
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The board is ultimately responsible for determining the criteria believed to be relevant by the board of directors, and for recommending candidates to the entire board for selection by the board for nomination to fill vacancies on the board or expiring terms of directors at each annual meeting of shareholders. The board considers the following qualities to be important for persons to be considered for nomination or re-nomination: integrity, experience, achievements, judgment, intelligence, personal character, ability to make independent analytical inquiries, willingness to devote adequate time to board duties, the ability to bring business to MidSouth Bank, and the likelihood that he or she will be able to serve on the board for a sustained period. Further, the committee could be expected to require information about the specific types of contributions, including community involvement, business attraction, general reputation, and public credibility that a candidate has.
The board (including any nominating committee that it might form in the future) would expect to consider, as part of the process for identifying individuals who might be candidates for nomination to the board of directors, individuals who are properly recommended by shareholders for nomination by the board at a meeting of shareholders at which directors are to be elected. To be proper, a recommendation for a nominee for director with respect to a meeting of shareholders must comply with applicable law and MidSouths bylaws. Essentially, the board must be informed of the same types of information that would be disclosed to shareholders in MidSouths proxy materials with respect to nominees pursuant to the federal securities laws, and any given nominee would be required to express her or his willingness to be nominated and to serve if elected.
The board (or its nominating committee) will consider any suggestions offered by shareholders with respect to potential directors. At present, there are no differences between the process for identifying and evaluating nominees for director used by the board of directors in its nominating committee function, including nominees recommended by security holders, and the boards manner in evaluating director nominees based on whether the nominee is recommended by a shareholder or by the board itself. However, neither the board (nor its nominating committee) will be required to enlarge or change the size of the board in order to nominate an otherwise fully qualified candidate proposed by a shareholder, nor will it necessarily replace an incumbent director with a proposed nominee. MidSouths board, acting as its own nominating committee, did not receive, by a date not later than the 120th calendar day before the date of MidSouths proxy statement released to shareholders in connection with its previous years Annual Meeting, a recommended nominee from a security holder that beneficially owned more than 5% of MidSouths voting common stock for at least one year as of the date the recommendation was made, or from a group of security holders that beneficially owned, in the aggregate, more than 5% of MidSouths voting common stock, with each of the securities used to calculate that ownership held for at least one year as of the date the recommendation was made.
MidSouth does not at the present time pay any fee to any third party or parties to identify or evaluate or assist in identifying or evaluating potential nominees.
As noted above, the board believes that all members of the board, acting as a nominating committee of the whole, are independent other than Lee M. Moss, who is MidSouths Chairman and Chief Executive Officer, and Dallas G. Caudle, Jr., who is MidSouths President and Chief Operating Officer.
Executive Officers of MidSouth
The following information relates to MidSouths executive officer team and provides name, age, and experience over the past five years for each such person. During 2003, with the exception of Mr. Busbey, all of these individuals were involved in forming MidSouth as a Tennessee-chartered commercial bank. MidSouth initially opened for business in January of 2004. Prior to joining MidSouth during its organizational phase, each of these individuals was an officer of another bank in the Rutherford County market, except that Mr. Busbey served as Controller for a bank located in Davidson County.
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Name |
Age |
Office and Business Experience |
||
Lee M. Moss |
62 | Chairman and Chief Executive Officer, MidSouth, 2003 present. | ||
Dallas G. Caudle, Jr. |
66 | President and Chief Operating Officer, MidSouth, 2009 present; Executive Vice President, Chief Operating Officer, and Corporate Secretary of MidSouth, 2003 2009. | ||
Kevin D. Busbey |
50 | Executive Vice President and Chief Financial Officer, MidSouth, April 2012 present; Senior Vice President and Chief Financial Officer, MidSouth, October 2007 April 2012. |
The executive officers are appointed by, and serve at the discretion of, MidSouths board of directors. Officers are elected annually by MidSouths board of directors. No executive officer has an employment contract with MidSouth, although the board has determined to explore such agreements in order to help assure continuity and stability of management. There is no family relationship between any of the above-named officers.
Certain MidSouth Insider Transaction
Certain directors and officers of MidSouth, businesses with which they are associated, and members of their immediate families are customers of MidSouth and have had deposit and loan transactions with MidSouth in the ordinary course of MidSouths business. MidSouth relies upon its directors and executive officers for identification of their respective associates and affiliates (as those terms are defined in the Exchange Act). All such loans and other types of extensions of credit were made in the ordinary course of MidSouths business on substantially the same terms, including interest rates, collateral and repayment terms as those prevailing at the time for comparable transactions with non-insiders and, in the opinion of management, these extensions of credit did not involve and presently do not involve more than a normal risk of collectability or other unfavorable features including the restructuring of an extension of credit, or a delinquency as to payment of interest or principal. Such loans are approved by MidSouths loan committee and/or by its board of directors pursuant to MidSouths written loan policy.
The term extensions of credit includes customary extensions of credit such as loans, bankers acceptances and letters of credit, and endorsements and collections of instruments in the ordinary course of business outstanding at any time since the beginning of MidSouths last fiscal year.
The indebtedness of management (including the directors and their respective interests) and these related parties to MidSouth at the end of the specified period was as follows:
Period Ending December 31 |
Total Dollar Amount of
Loans to Directors, Officers, and Their Affiliates ($000) |
Total Amount of Loans As
A Percentage of Net Loans (%) |
Total Amount of Loans As
A Percentage of Shareholders Equity (%) |
|||
2013 |
12,491 | 7.43 | 45.15 | |||
2012 |
10,564 | 7.67 | 36.85 | |||
2011 |
12,136 | 8.85 | 45.47 | |||
2010 |
12,218 | 8.02 | 52.21 |
No related-party loans were restructured or charged off in 2013 or 2012.
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Except as disclosed elsewhere in this joint proxy statement/prospectus, MidSouths executive officers and directors did not have business relationships with us that would require individual disclosure under applicable SEC regulations and no such transactions are anticipated during the 2013 fiscal year.
Services To and Transactions with Affiliates
Transactions between MidSouth and its present or future affiliates (including its existing and any future subsidiaries) are subject to restrictions of existing banking laws (such as Sections 23A and 23B of the Federal Reserve Act) and accepted principles of fair dealing. MidSouth can provide its affiliates and any future subsidiaries with advice and specialized services in the areas of accounting and taxation, budgeting and strategic planning, employee benefits and human resources, auditing, trust, and banking and corporate law. MidSouth may elect to charge a fee for these services from time to time. The responsibility for the management of any such future subsidiaries, however, will remain with each such entitys board of directors (or other governing body) and with the officers elected by each entitys board.
Expansion Strategy
MidSouth operates five full-service banking offices (including the main office) and one mortgage loan office. Renovations of the main office are expected in the future; however, the exact timing and costs of such have not yet been determined. New offices will be considered from time to time, subject to regulatory approval, at the discretion of the board of directors.
Governmental Monetary and Credit Policies and Economic Controls
The earnings and growth of the banking industry and ultimately of MidSouth are affected by the monetary and credit policies of governmental authorities, including the FRB. An important function of the FRB is to regulate the national supply of bank credit in order to control recessionary and inflationary pressures. Among the instruments of monetary policy used by the FRB to implement these objectives are open market operations in U.S. Government securities, changes in the federal funds rate, changes in the discount rate of member bank borrowings, and changes in reserve requirements against member bank deposits. These means are used in varying combinations to influence overall growth of bank loans, investments and deposits and may also affect interest rates charged on loans or paid on deposits. The monetary policies of the FRB authorities have had a significant effect on the operating results of commercial banks in the past and are expected to continue to have such an effect in the future. In view of changing conditions in the national economy and in the money markets, as well as the effect of actions by monetary and fiscal authorities, including the FRB, no prediction can be made as to possible future changes in interest rates, deposit levels, loan demand or their effect on MidSouths businesses and earnings.
Competition
MidSouth operates in a highly competitive environment. MidSouth is a relatively small commercial bank that competes for business with many far-larger organizations. MidSouth must compete with bank holding companies, commercial banks, savings and loan associations and other thrift institutions, credit unions, brokerage and investment banking firms, money market and other mutual funds for deposits, and other sources of funds. In addition, they compete with a variety of other financial services firms, such as finance companies, mortgage loan companies, leasing companies, merchant banks, insurance agencies and insurance companies. Many of these competitors are not subject to the same regulatory restrictions as are bank holding companies and banks. Thus MidSouth competes with businesses that do not have either the direct or indirect costs imposed by federal and state regulation, and thus which may have a competitive advantage over it. The deregulation of depository institutions, as well as the increased ability of nonbanking financial institutions to provide services previously reserved for commercial banks, has intensified competition. Because nonbanking financial institutions are not subject to the same regulatory restrictions as banks and bank holding companies, in many instances they may operate with greater flexibility because they may not be subject to the same types of regulatory applications, processes and costs as is MidSouth.
The principal geographic area of MidSouths operations encompasses Rutherford County, Tennessee, and other areas of Tennessee contiguous to Rutherford County. These areas are located in the Nashville MSA. In the Nashville MSA, there were approximately 64 commercial financial institutions operating 596 branch offices as of
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June 30, 2013 (based on data published by the FDIC). Aggregate deposits in the market at that date were approximately $40 billion (again, based on data published by the FDIC). Within the defined service area of MidSouths main office, the banking business is highly competitive. In Rutherford County there are an estimated 19 financial institutions operating 78 branch offices exclusive of free-standing ATMs) and holding deposits of over $3.1 billion (Source: FDIC as of June 30, 2013). MidSouths competitors include some of the largest bank holding companies in Tennessee, which have or control businesses, banks or branches in the area, including financial institutions with national and regional scope, as well as with a variety of other local banks, financial institutions, and financial services companies.
To compete with major financial institutions in its service area, MidSouth relies, in part, on specialized services, on a high level of personalized service and intensive customer-oriented services, local promotional activity, and personal contacts with customers by its officers, directors, and employees. For customers whose loan demands exceed its lending limit, MidSouth seeks to arrange for loans on a participation basis with correspondent banks. MidSouth also assists customers requiring services not offered by MidSouth in obtaining those services from its correspondent banks or other sources. Due to the intense competition in the financial industry, MidSouth can make no representation that its competitive position has remained constant, nor can it predict whether its position will change in the future.
Seasonality
Management does not believe that MidSouths business activities are seasonal in nature. Deposit, loan, and insurance demand may vary depending on local and national economic conditions, but management believes that any variation will not have a material impact on MidSouths planning or policy-making strategies.
Personnel
At year-end 2013, MidSouth employed 85 full-time equivalent personnel, including officers but not including contract labor for certain services. None of these employees is covered by a collective-bargaining agreement. Group life, health, dental, and disability insurance are maintained for or made available to employees by MidSouth, as is a 401(k) profit-sharing plan adopted by MidSouth as are certain benefit plans (described elsewhere herein) adopted by MidSouth. MidSouth considers employee relations to be satisfactory.
Economic Conditions and Governmental Policy; Laws and Regulations
MidSouths profitability, like most financial institutions, is primarily dependent on interest rate differentials and non-interest income. In general, the difference between the interest rates paid by MidSouth on interest-bearing liabilities, such as deposits and other borrowings, and the interest rates received by MidSouth on its interest-earning assets, such as loans extended to its borrowers, together with securities held in its investment portfolio, comprise the major portion of MidSouths earnings. These rates are highly sensitive to many factors that are beyond the control of MidSouth, such as inflation, recession and unemployment, and the impact which future changes in domestic and even in foreign economic conditions might have on MidSouth cannot be predicted by MidSouth.
MidSouths earnings are affected not only by the extensive regulation described above, but also by general economic conditions. These economic conditions influence, and are themselves influenced by, the monetary and fiscal policies of the United States government and its various agencies, particularly the FRB. An important function of the Federal Reserve System is to regulate the national money supply. The FRB implements national monetary policies (with objectives such as addressing inflationary and recessionary pressures) through its open-market operations in U.S. Government securities by adjusting the required level of reserves for depository institutions subject to its reserve requirements, and by varying the target federal funds and discount rates applicable to borrowings by depository institutions. The actions of the FRB in these areas influence the growth of bank loans, investments, and deposits and also affect interest rates earned on interest-earning assets and paid on interest-bearing liabilities. As described in MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations, changes in interest rates effected by the FRB can have a material impact on MidSouth. For example, the impact can be to narrow MidSouths net interest margin (the difference between what MidSouth pays for deposits and what MidSouth charges for loans), thus adversely affecting earnings. The nature and impact on MidSouth of any future changes in monetary and fiscal policies cannot be predicted.
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MidSouth is also affected by the supervisory activities and regulatory policies of various bank regulatory authorities, including the TDFI, the FDIC, the FRB, and the federal Office of the Comptroller of the Currency. Regulatory policies, examinations and initiatives impose costs on MidSouth and influence its internal governance and operations. Certain of those developments include changes in interest rates established by the FRB. Fluctuations in interest rates can have a detrimental impact on MidSouths earnings and its ability to manage assets and liabilities in the desired orderly manner. Please refer also to MidSouths Consolidated Financial Statements and MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations for additional information.
From time to time, legislative acts, as well as regulations, are enacted which have the effect of increasing the cost of doing business, limiting or expanding permissible activities, or affecting the competitive balance between banks and other financial services providers. Proposals to change the laws and regulations governing the operations and taxation of banks, bank holding companies, and other financial institutions and financial services providers are frequently made in the federal Congress, in the state legislatures, and before various regulatory agencies. Please refer to SUPERVISION AND REGULATION above.
Also, as a result of the FRBs recent monetary policy, prime lending rates have continued to remain low with no expectation of changing in the near future. As a result, MidSouths net interest margins have been relatively stable since MidSouth has been able to reduce rates on short-term interest-bearing liabilities to offset lower rates on loans as they mature and are renewed. Until the FRB increases its prime rate, MidSouths margins may decline somewhat due to local market pricing; however, the nature and impact on MidSouth of any future changes in monetary and fiscal policies cannot be predicted.
Transactions with MidSouths Accountants
As a matter of policy, MidSouth avoids being involved in transactions with its firm of independent certified public accountants that would, in MidSouths view, jeopardize that firms independence. MidSouth values the work and the independent perspective offered by that firm but engages in no material consulting service agreements with that firm. For example, in 2012, the fees for audit and audit-related services for MidSouth were $76 and $9, respectively, and such fees (other than those related to assisting in preparation of this document), are expected to be approximately the same for the year ended December 31, 2013. Audit fees represent fees for professional services provided in connection with the audit of MidSouths consolidated financial statements and review of its quarterly financial statements and audit services provided in connection with other statutory or regulatory filings. Audit-related fees consisted primarily of accounting consultations, services related to assistance with regulatory capital planning and services related to MidSouths investment division.
Environmental Matters
MidSouth is subject to various federal, state and local statutes and ordinances regulating the discharge of materials into the environment. MidSouth does not believe that it will be required to expend any material amounts in order to comply with these laws and regulations by virtue of MidSouths activities; however, such laws may from time to time affect MidSouth in the context of lending activities to borrowers who may themselves engage in activities or encounter circumstances in which the environmental laws, rules, and regulations are implicated.
Research
MidSouth makes no material expenditures for research and development.
Off-Balance Sheet Financing
MidSouths off-balance sheet financing (such as unfunded lines of credit and outstanding standby letters of credit) is undertaken in the normal course of its banking business and is discussed in Note 12 of MidSouths Consolidated Financial Statements.
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Dependence upon a Single Customer
MidSouths principal customers are generally located in the Middle Tennessee area with a concentration in Rutherford County in Tennessee. MidSouth is not dependent upon a single customer or a very few customers; however, a substantial percentage of MidSouths total loans is secured by commercial real estate, most of which property is located in Rutherford County, Tennessee. Accordingly, MidSouth has a significant concentration of credit that is dependent, under certain circumstances, on the strength of the local real estate market. MidSouths loan portfolio has been negatively affected by declines in the Rutherford County and Middle Tennessee real estate markets. Please refer to Factors That May Affect Future Results of Operations and Certain Risk Factors Related to MidSouth appearing below, MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations, and MidSouths Consolidated Financial Statements contained in this document.
Please refer also to the section of this report below entitled Recent Developments and Future Legislation for information concerning recent developments that could have an impact on MidSouths ability to expand its loans that are secured by commercial real estate or that are secured by non-traditional mortgage instruments.
Line of Business
MidSouths principal business is the operation of a commercial banking business in a community bank framework with offices serving rural, micropolitan, suburban and urban markets. MidSouth operates under the Tennessee Banking Act, the Federal Reserve Act, and the Federal Deposit Insurance Act in the area of finance. MidSouth derived virtually all of its total operating income from the commercial banking business in 2012 and 2013. Please refer to MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations and to the Notes to the MidSouth Consolidated Financial Statements for additional information about MidSouths business activities.
Factors That May Affect Future Results of Operations
In addition to the other information contained in this document, the following risks may affect MidSouth. If any of these risks occurs, MidSouths business, financial condition or operating results could be adversely affected.
MidSouths financial performance and profitability will depend on its ability to execute its corporate growth strategy and to manage recent and anticipated future growth. MidSouths success and profitability depend on its ability to maintain profitable operations through continued implementation of its community banking philosophy which emphasizes local focus, local knowledge and insight, accessibility and continuity of management, personal service and customer attention.
Changes in market interest rates may adversely affect MidSouths earnings. Interest rates affect the demand for new loans, the credit profile of existing loans, the rates received on loans and securities and rates paid on deposits and borrowings, and thus directly impact bank earnings. The relationship between the rates received on loans and securities and the rates paid on deposits and borrowings is known as interest rate spread. MidSouth will typically have to structure its interest rate strategy in such a way that movements in rates up or down could have either a positive or negative impact on its earnings. Although management believes that it can successfully manage interest rate risk, and interest rate sensitivity, investors must realize that significant fluctuations and/or changes in interest rates (including NIM compression) may have an adverse effect on MidSouths business, financial condition and results of operations from time to time. Even a technically correct interest rate sensitivity strategy is not a guarantee of success, because, for example, interest rate increases that may benefit MidSouths short-term earnings may have a long-term negative effect on MidSouths customers and, thus, on MidSouths long-term profitability.
MidSouths focus is on Middle Tennessee and, thus, economic conditions in this part of Tennessee could adversely affect its operations. This is true because MidSouths operations are, and can be expected to continue to be, centralized and focused on this relatively narrowly defined geographic area. As a result of this geographic concentration, MidSouths operating results depend largely upon economic conditions in this area. The deterioration in economic conditions in this market area, particularly in the real estate, construction, light industrial, or automotive sectors in which this area is heavily invested, had a material adverse impact on the quality of MidSouths loan portfolio and on the demand for MidSouths products and services, which in previous years had a material adverse effect on results of operations of MidSouth. Should there be an additional economic decline in Middle Tennessee,
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especially in Rutherford County, that would be expected to make it more difficult for MidSouth to maintain profitability in 2014 and beyond; however, MidSouths management and board of directors have responded to problems confronting MidSouth in the past in a manner calculated to identify problems, manage net interest margin carefully, streamline costs, and revise underwriting standards in light of past difficulties in the local real estate market. In addition, MidSouths capital ratios have been strengthened by three consecutive years of earnings and by the raising of capital through two preferred stock offerings. See MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations.
As discussed above, MidSouth is subject to government regulation that could limit or restrict its activities, including the restrictions or limitations that may result from guidances related to commercial real estate lending and the use of non-traditional mortgage products, among others. In turn, this could adversely impact operations. The financial services industry is regulated extensively. These regulations can sometimes impose significant limitations on Bank operations. In addition, these regulations are constantly evolving and may change significantly over time. Significant new laws or changes in existing laws or repeal of existing laws may cause MidSouths results to differ materially from those anticipated by the directors. Further, federal monetary policy, particularly as implemented through the Federal Reserve System, significantly affects credit conditions for MidSouth. The ultimate impact of financial institution affiliations under recent federal legislation, like the Dodd-Frank Act, and other future aspects of that law, cannot yet be predicted but could adversely affect MidSouth. The impact of recent statutes and regulatory legislation described below (and perhaps yet to be enacted) cannot be predicted at this time.
Recent Developments and Future Legislation
The description of laws applicable to MidSouth set forth in this joint proxy statement/prospectus is not intended to be exclusive or exhaustive. Other legislative and regulatory proposals, even within the foregoing regulations, that affect commercial banks and their competitors, and regarding changes in banking and the regulation of banks, thrifts and other financial institutions and bank and bank holding company powers, are being considered by the executive branch of the Federal government, Congress and various state governments, including Tennessee. Certain of these proposals, if adopted, could significantly change the regulation of banks and the financial services industry. Presently, the United States Congress is considering a wide range of change to the structure of bank regulation and consumer protection. It cannot be reliably predicted whether any of these proposals will be adopted, and, if adopted, how they will affect MidSouth. Please refer to SUPERVISION AND REGULATION above.
The Tennessee General Assembly recently adopted a law that can be expected to enhance both Bank shareholder privacy and the level of information that will have to be provided to shareholders under certain circumstances. Under existing law, the name, address and number of shares owned by each shareholder of record has to be disclosed under various circumstances. Under the proposed new Tennessee law, such information will be deemed confidential if a bank or bank holding company adopts an appropriate charter amendment.
Recent Accounting Developments
The impact of new accounting pronouncements are addressed in Note 1(s) to MidSouths Consolidated Financial Statements.
Selected Financial Data and Statistical Information
Please refer to MidSouths Selected Financial Data and to MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations.
MIDSOUTH STOCK OWNERSHIP OF MANAGEMENT AND CERTAIN BENEFICIAL OWNERS
MidSouth is authorized to issue 20,000,000 shares of its common stock and the same number of shares of preferred stock. There were approximately 3,872,923 shares of common stock, 1,259,907 shares of MidSouths preferred stock (both the Series 2009A preferred stock and its Series 2011-A preferred stock) issued and outstanding as of , 2014, all of which will be entitled to one vote per share at the MidSouth special meeting to be held to vote with respect to the proposed merger and the proposal for adjournment.
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The following table provides information, as of January 31, 2014, with respect to the following beneficial owners of MidSouths common and preferred stock:
| Each holder of 5% or more of MidSouths common and/or preferred voting stock; |
| Each director and director-nominee of MidSouth; and |
| All MidSouth executive officers and directors as a group. |
The information in the following table takes into account that preferred share carries one vote, just as does each share of common stock. The information in the table is premised on the fact that each stock option and each stock purchase warrant is exercisable for one share of common stock and each outstanding share of preferred stock will automatically convert into two common shares (if not earlier converted by the holder) into two common shares.
Accordingly, the Total Right to Acquire column includes stock options, stock purchase warrants, and net preferred shares held by the specified person. The term net preferred shares is intended to inform the reader that the conversion of preferred shares into common stock will both increase the number of h holders common shares (by the amount of twice the number of preferred shares converted) but simultaneously decrease the number of preferred shares held by the number of preferred shares converted. By way of example, a person who owns 100 preferred shares and converts 50 of them, will have obtained 100 common shares (2 multiplied times 50) but will only have 50 preferred shares remaining (100 minus 50). All preferred shares are immediately convertible at the instance of the holder and will convert automatically, if not earlier converted, immediately prior to the effective time of the merger. If the merger is not completed, or not completed before the automatic conversion dates of the two series of MidSouth preferred stock, then all preferred shares will automatically convert into two common shares, in 2015, for 2009A preferred stock and in 2016, for 2011-A preferred stock.
The options that are held by directors are unexercised options originally granted to directors and director-officers in 2004. The stock purchase warrants held by directors and executive officers are those issued as a result of their purchase of either 2009A or 2011-A MidSouth preferred stock (at the rate of one stock purchase warrant for each five preferred shares purchased). All stock purchase warrants are fully exercisable. Warrants will be converted into cash and/or stock, and stock options into options to purchase FFN common stock, as described above and as provided in the merger agreement.
Pursuant to Rule 13d-3 of the Exchange Act, MidSouth determined beneficial ownership for the purposes of this joint proxy statement/prospectus by adding the number of shares owned beneficially by such person plus the number of options and warrants exercisable, and the net number of preferred shares convertible (as explained above), by them as of a date that is 60 days after , 2014, which is the record date for the special meeting of MidSouth shareholders at which shares of MidSouth voting stock (all of its common and preferred stock) will be voted with respect to the merger agreement and the proposal to adjourn. The table assumes that the merger will be completed and that all options will have vested within 60 days after the MidSouth record date.
Name |
Total Common
Shares Owned(#) (1) (2) |
Total
Right to Acquire(#) (3) |
Total Votes
this Holder Can Cast (#) (4) |
Total
Shares that Can be Voted (%) (1) |
||||||||||||
Holders with 5% or More of MidSouths Voting Shares | ||||||||||||||||
Spence Limited, LP 49 Liberty Street Blakely, GA 39823 |
3,725 | 408,980 | 412,705 | 7.71 | ||||||||||||
Directors and Executive Officers | ||||||||||||||||
Donald W. Alexander |
- 0 - | 15,000 | - 0 - | * | ||||||||||||
Jimmy E. Allen |
53,500 | 180,000 | 128,500 | 4.46 | ||||||||||||
Roseann H. Barton |
2,000 | 7,200 | 3,000 | * |
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Name |
Total Common
Shares Owned(#) (1) (2) |
Total
Right to Acquire(#) (3) |
Total Votes
this Holder Can Cast (#) (4) |
Total
Shares that Can be Voted (%) (1) |
||||||||||||
Kevin D. Busbey |
- 0 - | 15,000 | - 0 - | * | ||||||||||||
Dallas G. Caudle, Jr. |
25,150 | 79,000 | 45,150 | 2.01 | ||||||||||||
D. Gerald Coggin, Sr. |
45,190 | 143,898 | 103,780 | 3.62 | ||||||||||||
Daniel B. Decker |
38,300 | 37,000 | 48,300 | 1.46 | ||||||||||||
John D. Floyd |
77,500 | 154,000 | 147,500 | 4.44 | ||||||||||||
Donald R. Gintzig |
37,500 | 43,600 | 50,500 | 1.57 | ||||||||||||
Brian F. Kidd |
3,200 | 10,000 | 8,200 | * | ||||||||||||
Lee M. Moss |
34,700 | 103,080 | 61,100 | 2.64 | ||||||||||||
Dr. Max L. Moss, Jr. |
3,000 | -0- | 3,000 | * | ||||||||||||
Matt B. Murfree, III |
1,500 | 19,840 | 3,700 | * | ||||||||||||
Beth S. OBrien |
29,375 | 15,000 | 29,375 | * | ||||||||||||
Dr. George W. Smith |
5,000 | 27,000 | 15,000 | * | ||||||||||||
Stephen A. Steele |
19,675 | -0- | 19,675 | * | ||||||||||||
Paula B. Thomas |
1,250 | 2,147 | 2,226 | * | ||||||||||||
Gregory E. Waldron |
53,135 | 157,165 | 121,335 | 3.97 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Directors and Executive Officers as a Group (18 persons) |
429,975 | 1,008,930 | 790,341 | 24.91 | ||||||||||||
|
|
|
|
|
|
|
|
* | Less than 1%. |
Notes to Preceding Table
(1) | The percentages shown are based on the sum of 3,872,923 shares of common stock actually outstanding at January 31, 2014, plus that number of common shares obtainable by each person named within the 60 days next succeeding the record date for the MidSouth special meeting pursuant to the exercise of stock options and/or stock purchase warrants as well as the one-for-two conversion of preferred stock beneficially owned by each insider. Such shares are deemed to be outstanding for the purpose of computing the percentage of outstanding shares owned by such person, but are not deemed to be outstanding for the purpose of computing the percentage owned by any other person. The percentages have been calculated based on the pro forma number of shares of common stock deemed to be owned beneficially by such holder by including not only issued and outstanding shares but also the number of stock options and/or stock purchase warrants that such person could exercise, and the number of preferred shares that such person could convert, within 60 days after the record date for the MidSouth special meeting of shareholders to consider and vote with respect to the merger agreement and the proposal to adjourn. The last two columns specify the number of votes that each named person can cast at such meeting. |
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(2) | This information has been furnished by the directors and officers of MidSouth. Unless otherwise indicated, a shareholder possesses sole voting and investment power with respect to all of the shares shown opposite her or his name, including shares held in her or his individual retirement account. Shares held in self-directed Individual Retirement Accounts have been shown in each directors total and classified as subject to the directors sole voting and dispositive authority. The ownership shown is that reported to MidSouth as of a recent date. The totals shown include shares held in the name of spouses, children and certain relatives residing in the insiders household, trusts, estates, custodial arrangements for children, and certain affiliated companies and/or business entities as to which beneficial ownership may be disclaimed. |
(3) | The amounts shown represent the shares that are issuable upon the exercise of stock options and/or stock purchase warrants that are (a) currently exercisable and (b) exercisable within 60 days after the MidSouth special meeting record date. The above table includes both stock options and stock purchase warrants held by the specified persons. This column includes, also, the number of common shares that the named individual could acquire by converting her, his or its preferred shares into common stock at the stated conversion ratio of one preferred share converting into two shares of common stock. Presently, options to acquire 6,000 shares of MidSouth common stock held by Mr. Busbey are vested out of the total shown as held by him in the table. All unvested options of Mr. Busbey and other options holders will vest at the effective time of the merger. |
(4) | The number of preferred shares beneficially owned has been furnished by the directors and officers of MidSouth. Unless otherwise indicated, a shareholder possesses sole voting and investment power with respect to all of the fully-converted preferred shares shown opposite her or his name, including shares held in her or his individual retirement account. Shares held in self-directed Individual Retirement Accounts have been shown in each directors total and classified as subject to the directors sole voting and dispositive authority. The ownership shown is that reported to MidSouth as of a recent date. The totals shown include shares held in the name of spouses, children and certain relatives residing in the insiders household, trusts, estates, custodial arrangements for children, and certain affiliated companies and/or business entities as to which beneficial ownership may be disclaimed. The amounts shown in this column were calculated by multiplying each share of preferred stock beneficially owned by such person by two, in order to present a fully-converted number of shares of common stock beneficially owned by such person within 60 days after the record date for the MidSouth special meeting. |
MARKET FOR MIDSOUTHS COMMON EQUITY, RELATED STOCKHOLDER MATTERS
AND ISSUER PURCHASES OF EQUITY SECURITIES
MidSouth Stock and Market Information
There is no established public trading market for MidSouths common or preferred stock. Trades of 114,660 shares of MidSouths common stock (at a price range of $3.50 to $5.00), and 1,000 shares of the Series 2009A preferred shares with warrants attached (at a price of $5.00) have been reported to MidSouth for the year ended December 31, 2013. No trades of MidSouths 2011 preferred shares were reported in 2013. MidSouth has no trading symbol, and it is not listed on any exchange. Management believes that Middle Tennessee, especially Rutherford County, is the principal market area for MidSouths securities. The following table sets forth the estimated high and low sales prices per share of the common stock for the first quarter of 2014 and for each quarter of fiscal 2013 and 2012. Such information may not include all transactions in MidSouths common stock for the respective periods shown, and it is possible that transactions occurred during the periods reflected or discussed at prices higher or lower than the prices set forth in the table. Certain of the transactions involved, or may have involved, persons affiliated with MidSouth.
MidSouths common stock is thinly traded in privately negotiated transactions. There are no market makers for MidSouths common stock. Bid and asked price information for MidSouths common stock is not available. MidSouth believes that the market value of its common stock is currently in the range of approximately $4.00 to $5.00 per share in based on the most recent trades that were reported to MidSouth in the fourth quarter of 2013. Similarly, MidSouth understands that shares of its Series 2009A preferred stock have traded at $5.00 per share (with warrants attached). No shares of its Series 2011-A preferred stock have traded the past year. Exercises of warrants issued with the MidSouth preferred stock during 2013 have been made at prices ranging from $3.37 to $3.82 per share.
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The following table shows quarterly high and low trade prices for MidSouths common stock as reported to MidSouth. Considering the extremely low trade volumes, the prices indicated in the following table may not be useful in determining the current price that can be obtained for shares of MidSouths common stock.
Because there is no established public trading market for MidSouths common stock, because it is very thinly traded, and because MidSouth and those closely affiliated with MidSouth may be involved in particular transactions, the prices shown below may not necessarily be indicative of the fair market value of the common There can be no assurance that the common stock will subsequently be purchased or sold at prices comparable to the prices set forth below.
Reported Trades in MidSouths Common Stock
Calendar Period |
High($) | Low($) | ||||
2014 |
||||||
First Quarter (1) |
7.00 | 6.75 | ||||
2013 |
||||||
Fourth Quarter |
5.00 | 4.00 | ||||
Third Quarter |
5.00 | 3.50 | ||||
Second Quarter |
5.00 | 3.50 | ||||
First Quarter |
5.00 | 3.67 | ||||
2012 |
||||||
Fourth Quarter |
13.00 | 5.01 | ||||
Third Quarter |
10.09 | 3.00 | ||||
Second Quarter |
5.00 | 5.00 | ||||
First Quarter |
* | * |
Notes:
(1) | First quarter trades reported to MidSouth through January 31, 2014 involved 1,600 shares in three transactions. 100 shares reportedly traded for $7.00 per share. |
The * indicates that no trades were reported to MidSouth for the period. |
During 2013, MidSouth did not repurchase any of its shares. Under Tennessee law, a bank may generally repurchase its own shares after receipt of regulatory approval for a specific redemption or for the redemption of a specified number (or dollar volume) of shares. MidSouth has not sought any such approval at this time and has no plan to seek any such approval.
The number of record holders, including those shares held in nominee or street name, of MidSouths common stock at December 31, 2013 was approximately 1,788.
The following is a brief outline of MidSouths authorized securities. A more complete discussion of MidSouths securities is contained in the Registration Statement filed by MidSouth on Form 10-SB in April of 2005. All such discussions are qualified in their entirety by reference to MidSouths charter, as amended, and bylaws, as well as by reference to the corporate and banking laws governing MidSouth.
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MidSouths Common Stock
MidSouths outstanding securities consist of its common voting stock, $1.00 par value, of which 20 million shares are authorized. As of December 31, 2013, MidSouth had 3,872,923 shares of its common stock outstanding. No shares are reserved for issuance except up to 334,800 shares reserved in connection with MidSouths equity incentive plan and 2,757,606 shares reserved to meet the conversion of the following: (1) MidSouths 1,017,557 convertible Series 2009A Preferred Stock and the exercise of 194,251 warrants to purchase shares of MidSouths common stock issued in connection with that preferred stock offering; and (2) MidSouths 242,350 convertible Series 2011-A Preferred Stock and the exercise of 43,541 warrants to purchase shares of MidSouths common stock issued in connection with that preferred stock offering. As of December 31, 2013, options for 326,300 shares were outstanding, of which 65,260 options were exercisable at that date. Additional options may be granted in the future.
MidSouths common stock is registered under Section 12 of the Securities Exchange Act pursuant to 17 C.F.R. 240.12g-3(a). MidSouth files periodic and other reports, and its proxy materials, with the FRB. MidSouth is subject to all of the requirements of the Securities Exchange Act applicable to smaller reporting companies. If MidSouth were to have 2,000 or more holders of any class of preferred stock as of its last business day of any year, it would be required to promptly register the preferred stock under the Securities Exchange Act.
Preferred Stock, Warrants, and Warrant Shares
MidSouths charter authorizes the issuance of up to 20 million shares of preferred stock. The preferred stock may be issued in one or more classes and series, with such designations, full or limited voting rights (or without voting rights), redemption, conversion or sinking fund provisions, dividend rates or provisions, liquidation rights, and other preferences and limitations as the board of directors may determine in the exercise of its business judgment. The preferred stock may be issued by the board of directors for a variety of reasons.
By charter amendment filed with the Tennessee Secretary of State on December 30, 2009, MidSouth authorized the issuance of up to 3,000,000 shares of its convertible voting non-cumulative Series 2009A Preferred Stock, $1.00 stated value (Series 2009A preferred shares). Each Series 2009A preferred share can be converted by the registered holder thereof into two shares of MidSouths common stock. All unconverted Series 2009A preferred shares will convert automatically into two shares of common stock effective March 31, 2015. Any fractions resulting from an optional or automatic conversion will be rounded up to the nearest whole share. The price was set at $5.00 per share. For each five Series 2009A preferred shares that an investor purchased in the Series 2009A preferred shares offering, the investor also received a stock purchase warrant to purchase one additional share of MidSouths common stock at a price equal to 75% of trailing quarter-end book value, but not less than $2.50, nor more than $10.00 per share.
The shares that were offered in the Series 2009A preferred shares offering were shares of MidSouths $1.00 stated value convertible voting preferred stock. The offering price for the Series 2009A preferred shares was $5.00 per share, which was approximately 96% of the estimated book value of each of MidSouths common shares at September 30, 2009, but at the one-to-two conversion ratio, the effective offering price was $2.50, which was approximately 48% of the book value of a common share as of that date. Only whole shares were sold. The offering price for the Series 2009A preferred shares was set arbitrarily by MidSouths board of directors and was not based on any established public trading market or on bid or asked prices. The offering price per Series 2009A preferred share was intended to be a discount on the book value of MidSouths common shares (calculated by MidSouth as $5.28 per common share (unaudited) at September 30, 2009). The discount was granted in order to make the Series 2009A preferred shares offering attractive to investors. The offering price was also believed to favor eligible shareholders who had priority rights to acquire Series 2009A preferred shares in the offering (generally, persons who were shareholders of MidSouth at the close of MidSouths business on November 30, 2009). The Series 2009A preferred shares have conversion and voting rights and a liquidation preference over shares of MidSouths currently outstanding common stock. The Series 2009A preferred shares offering began on December 30, 2009, and it ended on June 4, 2010.
The 2009A preferred shares will automatically convert to ordinary common stock at the prescribed conversion ratio (Shares Conversion Ratio) on March 31, 2015 (Shares Conversion Date). The Shares Conversion Ratio is 1-to-2. Each holder of the 2009A preferred shares will have the option to convert such persons Series 2009A preferred shares held of record, at the Shares Conversion Ratio at any time after the Series 2009A preferred shares are issued, although MidSouth may not accept more than one voluntary conversion in any 12-month period. On the Shares Conversion Date, all unconverted Series 2009A preferred shares will automatically convert to MidSouth common stock at the Shares Conversion Ratio. Any fractions resulting from an optional or automatic conversion will be rounded up to the nearest whole share. The Series 2009A preferred shares will also convert automatically at the Shares Conversion Ratio at the effective time of any acquisition of MidSouth by any unaffiliated bank or bank holding company; however, conversion would not be triggered if MidSouth elected to form a one-bank holding company for itself.
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Each investor in the Series 2009A preferred shares received a stock purchase warrant (Series 2009A warrant) to purchase one share of common stock for each five preferred shares purchased in the Series 2009A preferred shares offering, subject to adjustment for stock splits and certain other occurrences as described in the Series 2009A warrant. The Series 2009A warrants are exercisable to purchase shares of MidSouths common stock at a price per share equal to 75% of the book value of a common share of MidSouth stock as of the end of the immediately preceding calendar quarter, unaudited, as determined by MidSouth. The exercise price cannot, however, exceed $10.00 per share or be less than $2.50 per share. The Series 2009A warrants will be exercisable at any time after issuance until they expire. The Series 2009A warrant (and the warrant shares resulting from the exercise of the Series 2009A warrant) can be sold separately from the preferred shares (that is, they are detachable warrants).
The common shares obtained by exercise of the Series 2009A warrant may be referred to as the warrant shares. When issued by MidSouth, the Series 2009A warrant will govern the terms of purchases and issuance of warrant shares purchasable under the Series 2009A warrant. The transfer of the Series 2009A warrant and the issuance and transfer of any one or more of the warrant shares are subject to the limitations specified in the Series 2009A warrant.
The Series 2009A warrants were deemed issued promptly upon the issuance of the related Series 2009A preferred shares and will be exercisable at any time in minimum increments of 1,000 shares (or, if less, the total number of common shares into which such Series 2009A warrant is exercisable). The Series 2009A warrants will expire on March 31, 2016 except for the right of MidSouths board of directors to require its prompt exercise under extraordinary circumstances, such as a pending merger. MidSouth will have the right to cause the Series 2009A warrant to be exchanged for a holding company warrant for an equivalent number of ordinary common shares of the holding companys common stock if MidSouth forms a one-bank holding company for itself (or to cause the Series 2009A warrants to be cancelled if MidSouth holding company, as part of its formation, offers bank holding company warrants to replace them on substantially the same terms and conditions, and for the same strike price and number of shares,) as govern MidSouths Series 2009A warrants.
As of December 31, 2013, MidSouth had 1,017,557 Series 2009A preferred shares outstanding and Series 2009A warrants outstanding for the purchase of 194,251 warrant shares. The issuance of warrant shares resulting from Series 2009A warrant exercises can result in dilution to holders of common shares and to holders of Series 2009A preferred shares who do not exercise their Series 2009A warrants.
By charter amendment filed with the Tennessee Secretary of State on March 22, 2011, MidSouth authorized the issuance of up to 550,000 shares of its convertible voting non-cumulative Series 2011-A Preferred Stock, $1.00 stated value (Series 2011-A preferred shares). Each Series 2011-A preferred share can be converted by the registered holder thereof into two shares of MidSouths common stock. All unconverted Series 2011-A preferred shares will convert automatically into two shares of common stock effective May 31, 2016. Any fractions resulting from an optional or automatic conversion will be rounded up to the nearest whole share. The price was set at $5.50 per share. For each five Series 2011-A preferred shares that an investor purchased in the Series 2011-A preferred shares offering, the investor also received a stock purchase warrant to purchase one additional share of MidSouths common stock at a price equal to 85% of trailing quarter-end book value, but not less than $2.75, nor more than $11.00 per share.
The shares that were offered in the Series 2011-A preferred shares offering were shares of MidSouths $1.00 stated value convertible voting preferred stock. The offering price for the Series 2011-A preferred shares was $5.50 per share, which was approximately 139% of the estimated book value of each of MidSouths common shares at December 31, 2010, but at the one-to-two conversion ratio, the effective offering price was $2.75, which was approximately 69% of the book value of a common share as of that date. Only whole shares were sold. The offering price for the Series 2011-A preferred shares was set arbitrarily by MidSouths board of directors and was not based on any established public trading market or on bid or asked prices. The offering price per Series 2011-A preferred share was intended to be a discount on the book value of MidSouths common shares (calculated by MidSouth as $3.97 per common share (unaudited) at December 31, 2010). The discount was granted in order to make the Series
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2011-A preferred shares offering attractive to investors. The offering price was also believed to favor eligible shareholders who had priority rights to acquire Series 2011-A preferred shares in the offering (generally, persons who were shareholders of MidSouth at the close of MidSouths business on January 31, 2011). The Series 2011-A preferred shares have conversion and voting rights and a liquidation preference over shares of MidSouths currently outstanding common stock. The Series 2011-A preferred shares offering began on March 22, 2011 and it ended on June 30, 2011.
The 2011-A preferred shares will automatically convert to ordinary common stock at the prescribed conversion ratio (Shares Conversion Ratio) on May 31, 2016 (Shares Conversion Date). The Shares Conversion Ratio is 1-to-2. Each holder of the 2011-A preferred shares will have the option to convert such persons Series 2011-A preferred shares held of record, at the Shares Conversion Ratio at any time after the Series 2011-A preferred shares are issued, although MidSouth may not accept more than one voluntary conversion in any 12-month period. On the Shares Conversion Date, all unconverted Series 2011-A preferred shares will automatically convert to MidSouth common stock at the Shares Conversion Ratio. Any fractions resulting from an optional or automatic conversion will be rounded up to the nearest whole share. The Series 2011-A preferred shares will also convert automatically at the Shares Conversion Ratio at the effective time of any acquisition of MidSouth by any unaffiliated bank or bank holding company; however, conversion would not be triggered if MidSouth elected to form a one-bank holding company for itself.
Each investor in the Series 2011-A preferred shares received a stock purchase warrant (Series 2011-A warrant) to purchase one share of common stock for each five preferred shares purchased in the Series 2011-A preferred shares offering, subject to adjustment for stock splits and certain other occurrences as described in the Series 2011-A warrant. The Series 2011-A warrants are exercisable to purchase shares of MidSouths common stock at a price per share equal to 85% of the book value of a common share of MidSouth stock as of the end of the immediately preceding calendar quarter, unaudited, as determined by MidSouth. The exercise price cannot, however, exceed $11.00 per share or be less than $2.75 per share. The Series 2011-A warrants will be exercisable at any time after issuance until they expire. The Series 2011-A warrant (and the warrant shares resulting from the exercise of the Series 2011-A warrant) can be sold separately from the preferred shares (that is, they are detachable warrants).
The common shares obtained by exercise of the Series 2011-A warrant may be referred to as the warrant shares. The Series 2011-A warrant governs the terms of purchases and issuance of warrant shares purchasable under the Series 2011-A warrant. The transfer of the Series 2011-A warrant and the issuance and transfer of any one or more of the warrant shares are subject to the limitations specified in the Series 2011-A warrant.
The Series 2011-A warrants were deemed issued promptly upon the issuance of the related Series 2011-A preferred shares and will be exercisable at any time in minimum increments of 1,000 shares (or, if less, the total number of common shares into which such Series 2011-A warrant is exercisable). The Series 2011-A warrants will expire on May 31, 2017 except for the right of MidSouths board of directors to require its prompt exercise under extraordinary circumstances, such as a pending merger. MidSouth will have the right to cause the Series 2011-A warrant to be exchanged for a holding company warrant for an equivalent number of ordinary common shares of the holding companys common stock if MidSouth forms a one-bank holding company for itself (or to cause the Series 2011-A warrants to be cancelled if MidSouth holding company, as part of its formation, offers bank holding company warrants to replace them on substantially the same terms and conditions, and for the same strike price and number of shares,) as govern MidSouths Series 2011-A warrants.
As of December 31, 2013, MidSouth had 242,350 Series 2011-A preferred shares outstanding and Series 2011-A warrants outstanding for the purchase of 43,541 warrant shares. The issuance of warrant shares resulting from Series 2011-A warrant exercises can result in dilution to holders of common shares and to holders of Series 2011-A preferred shares who do not exercise their Series 2011-A warrants.
Each share of preferred stock, whether Series 2009A or Series 2011-A, generally carries one vote per share in all matters on which holders of common stock are entitled to vote, including the election of directors. In such matters, holders of preferred stock will vote with the holders of the common stock; however, holders of preferred stock will not vote on matters affecting the rights principally attributable to the common stock nor will holders of common shares vote on matters principally related to the shares of preferred stock. The right of any shareholder to vote his, her or its shares of common or preferred stock may be limited by the Tennessee Control Share Act.
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Holders of shares of preferred stock will be superior in liquidation rights to holders of ordinary common stock. The liquidation preference is $5.00 per share. Both the shares of preferred stock and the shares of common stock, including those obtained by exercising the warrants issued pursuant to both preferred stock offerings, will be inferior in liquidation rights to debt owed by MidSouth, including any future debentures. MidSouth has agreed not to issue preferred or common stock with liquidation rights superior to those of the shares of preferred stock.
To the extent permitted by applicable regulatory agencies and state law, MidSouth may pay cash dividends on the shares of preferred stock, in its sole option, when, and if, it elects to do so. No cash dividend is guaranteed and dividends on shares of preferred stock will not be cumulative. The payment of cash dividends will not diminish the Shares Conversion Ratio. The rate of dividend per share of the shares of preferred stock will not be fixed but will not be less than the amount of dividend to be paid per common share, if any. No cash dividend could be paid on the ordinary common stock for any specified period unless the dividend on the shares of preferred stock for that same period had been paid or declared and reserved for prompt payment; however, no dividend is expected to be paid on MidSouths common or any series of preferred stock (including the Series 2009A preferred shares or the Series 2011-A preferred shares) for the foreseeable future.
MidSouth currently electronically records the shares of preferred stock, warrants and warrant shares as book entry securities.
Dividends
MidSouth did not declare cash or stock dividends in 2013. Future dividends may be paid as determined by MidSouths board of directors from time to time in accordance with federal and state law. To the extent practicable, but in all events subject to a wide variety of considerations and to the discretion of the board of directors, MidSouth may pay dividends from time to time in accordance with Tennessee law based on its assessment, among other things, of working and regulatory capital needs and the need to retain earnings to fund growth.
Tennessee law further restricts the timing and amount of dividends that may be paid by a Tennessee banking corporation such as MidSouth. In no event is a Tennessee chartered bank permitted to pay dividends in any calendar year that exceed the total of its net income of that year combined with its retained net income of the preceding two years without the prior approval of the Commissioner of the TDFI. Prior regulatory approval must be obtained before declaring any dividends if the amount of MidSouths capital, and surplus is below certain statutory limits.
No dividend or other distribution can be made if MidSouth is insolvent or would be rendered insolvent by such action. Under the Tennessee Business Corporation Act, MidSouth may not pay a dividend if afterwards:
| MidSouth would be unable to pay its debts as they become due; or |
| MidSouths total assets would be less than its total liabilities plus an amount needed to satisfy any preferential rights of shareholders. |
Any dividends that may be declared and paid by MidSouth will depend upon its earnings, financial condition, regulatory and prudential considerations, and or other factors affecting MidSouth that cannot be reliably predicted.
MidSouth may not pay dividends on its common stock unless it also pays not less than the same dividend per share with respect to the preferred shares, although it could pay dividends on the preferred shares without paying a dividend on its common stock. See -Preferred Stock, Warrants, and Warrant Shares.
The payment of dividends by MidSouth, as with any federally regulated commercial bank, is, of course, dependent upon its earnings and financial condition and, in addition to the limitations discussed above, is subject to the statutory power of certain federal regulatory agencies to act to prevent unsafe or unsound banking practices. Please refer also to the MidSouths Managements Discussion and Analysis of Financial Condition and Results of Operations and to MidSouths Consolidated Financial Statements included in this document.
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Taxation
Under current Tennessee tax law, cash dividends paid by Tennessee banks to Tennessee residents are exempt from state income tax. Under Federal income tax law, dividends paid by MidSouth would be taxable as ordinary income currently subject to special rates applicable to domestic dividends. Shareholders and prospective investors are urged to consult their own tax and accounting professionals for advice. Nothing in this joint proxy statement/prospectus can be considered or treated as or deemed to be tax, accounting, legal, financial, or investment advice.
Sales of Securities in 2013
For the year 2013, MidSouth sold 5,974 shares of its common stock at an average weighted price of $3.69 per share for which MidSouth received gross proceeds $22,000 (before payment of expenses). These sales were made pursuant to exercises of common stock purchase warrants. None of these shares were registered under the Securities Act of 1933, as amended (Securities Act). This discussion includes sales of reacquired securities (if any), as well as new issues, securities issued in exchange for property, services, or other securities, and new securities resulting from the modification of outstanding securities.
All of the proceeds received from the sales of these shares were paid directly to MidSouth and were used by MidSouth for general working capital purposes. None of the sales were underwritten, and there were no payments to underwriters or other persons, nor were there any deductions or discounts from the purchase price received by MidSouth. All of the shares were sold in private transactions. The securities sold by MidSouth are not convertible or exchangeable into equity securities, and they were not warrants or options representing equity securities. The common stock of commercial banks like MidSouth is exempt from registration under Section 3(a)(2) of the Securities Act of 1933, as amended.
MidSouth did not repurchase any of its shares in 2013. In the future, MidSouth may, subject to regulatory approval, repurchase shares of its stock from time to time in order to provide some liquidity in the stock. MidSouth does not expect to engage in or to solicit such purchases. There is no preset number of shares that MidSouth will purchase and no plan or program of repurchases. Because there is no established public trading market, MidSouth may at some time in the future elect to act as the purchaser of last resort to provide some liquidity in the shares, paying no more than book value, as calculated by it, for shares based on the book value as of the immediately preceding month or quarter end (unaudited). MidSouth does not encourage such sales to it and does not pay compensation to any person or entity in any manner to encourage or to effect such purchases.
Tennessee Control Share Act
Any shareholder who ultimately purchases or controls beneficially ten percent (10%) or more of MidSouths common stock or Preferred Stock may have to address a limitation of his, her or its voting rights pursuant to the charter and the Tennessee Control Share Acquisition Act, T.C.A. §§48-103-301, et seq., to the extent that it applies to MidSouth.
Transfer Agent
Registrar and Transfer Company, an independent registered transfer agent headquartered in Cranford, New Jersey, serves as MidSouths transfer agent.
Accounting Policies and Developments
Please refer to the Consolidated Financial Statements for important information concerning MidSouth, including applicable accounting principles and policies, as well as the impact of new accounting standards.
Where to Find Additional Information about MidSouth
MidSouths shareholders may obtain copies of MidSouths prior annual reports on Form 10-K and 10-KSB, quarterly reports on Forms 10-Q and 10-QSB, current reports on Form 8-K, and any amendments to these reports, by sending a written request addressed to Investor Services, MidSouth, One East College Street, Post Office Box 7100, Murfreesboro, Tennessee 37133-7100. MidSouth also posts certain reports on its website at
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www.midsouthbanking.com; however, even though reference is made to its website address in this document, it is intended as a textual reference only and the information in or referenced by the website is not incorporated by reference herein or in any other filing made by MidSouth under the Exchange Act.
Please refer also to the section entitled WHERE YOU CAN FIND MORE INFORMATION, appearing immediately prior to the Table of Contents in this document.
MIDSOUTHS MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND
RESULTS OF OPERATIONS
General
As of and For the Years Ended December 31, 2012 and 2011
General
MidSouth Bank (MidSouth) is a community bank headquartered in Murfreesboro, Rutherford County, Tennessee, which is part of the Nashville-DavidsonMurfreesboroFranklin, TN Metropolitan Statistical Area. MidSouth is a state-chartered bank that began operations on January 20, 2004. MidSouth currently operates from six locations in Rutherford County its main office, three branches and a mortgage loan office in Murfreesboro, and one location in Smyrna. In addition, MidSouth has a wholly-owned subsidiary, MSB Services, Inc., that provides credit life insurance services to MidSouth. MidSouth offers a wide range of banking services including checking, savings, money market accounts, treasury management, certificates of deposit and loans for consumer, commercial and real estate purposes. In addition to these traditional services, MidSouth offers trust services and investment services to its customers through Raymond James Financial Services.
The purpose of this discussion is to provide insight into the financial condition and results of operations of MidSouth. This discussion should be read in conjunction with MidSouths annual consolidated financial statements presented elsewhere in this joint proxy statement/prospectus. All amounts are in thousands, except per share data or unless otherwise indicated.
Since mid-2008, the United States economy has been struggling through an extended recessionary/post-recessionary period, and that period of time has proven to be extremely challenging for banks across the nation. Since mid-2008 through year-end 2012, 463 banks in the United States have been closed by the Federal Deposit Insurance Corporation. The first Tennessee bank failures since November 2002 occurred during 2012, and while only three Tennessee banks have been closed, a number of other banks in the state have felt the effects of the sluggish economy resulting in credit quality issues.
Rutherford County MidSouths primary market, has been showing signs of economic improvement over the past couple of years. The local unemployment rate improved to 5.8% in December 2012 in comparison with 6.7% in December 2011. This also compares favorably with the state unemployment rate, which was 7.6% in December 2012. In addition, in a report produced by the U.S. Department of Labors Bureau of Labor Statistics, Rutherford County was ranked in the top ten large counties in the country in percent increase in employment from 2011 to 2012. Local employment opportunities have been further enhanced by announcements like that of global distributor Amazon, which announced in January 2012 that it would build two new fulfillment centers in Tennessee, one of which would be located in Murfreesboro.
The local real estate market also shows signs of improvement. Several local developers have started working on new developments around the county, and local home inventories have shrunk in comparison with the high levels of inventory that were sitting in the market in previous years. Also, Rutherford County has experienced a 32% increase in home sales from January 2012 to January 2013, according to local newspaper, The Murfreesboro Post. The same article reported that Rutherford County has issued 1,290 building permits so far in 2013, up from 820 for the same period in 2012.
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Residential growth has been a primary economic driving force for Rutherford County for many years. According to a March 17, 2011 news report from the Daily News Journal, Rutherford Countys population has experienced 44.3 percent growth over the past 10 years, pushing the countys population to 262,604 in the 2010 Census. In that article, the county mayor noted that the county has opportunities for work, opportunities for an excellent education from our local school systems, opportunities for higher education at MTSU, and opportunities for all the amenities in life, including shopping and restaurants and entertainment. The Federal Reserve Bank of St. Louis estimates that the population of the county had grown to nearly 269,000 in 2011. For some time now, Rutherford County has been ranked as either the fastest or the second fastest growing county in Tennessee and is currently the fifth largest county in the state. According to statistics provided by the Rutherford County Chamber of Commerce, the county is also ranked as the 30th fastest growing county in the United States. Rutherford Countys population growth rate continues to drive the local economy primarily through real estate needs.
Since opening in 2004, MidSouth has made a number of loans to developers and builders, and due to the nature of the local community, a substantial portion of MidSouths loans are currently secured by real property. While Rutherford County did not see the extreme decreases in real estate values that many parts of the country experienced, property values declined sharply during the Great Recession due in large part to the countys excessive real estate development inventory. Real estate lending has been difficult in recent years; however, applications for development loans increased somewhat in the last half of 2012. Borrowers, specifically builders and developers, have worked through some of their real estate inventories, and the increase in local population has created the demand for new development.
Like many financial institutions, MidSouth Bank experienced credit quality issues during the Great Recession. After recording loan loss provisions of over $11,000 in 2009, MidSouth worked through a number of problem loans and began reducing the loan loss trend. Comparatively speaking, MidSouth recorded $1,100 in loan loss provisions for 2010 and only $400 in 2011. In 2012, MidSouth received net recoveries on charged off loans to the extent that a reverse loan loss provision of $470 was recorded in 2012. Management believes that this trend indicates that the larger problem loans within MidSouths loan portfolio have been properly identified and that managements credit risk management processes are effective and are producing results.
Beginning with 2010, MidSouths earnings have continued to improve. MidSouth had its third consecutive year of earnings growth, and it is managements plan to continue working the strategies that have been successful over the past couple of years and to bring in additional loan growth to improve core earnings. Managements efforts to work out problem loans, recover loan losses, maintain MidSouths net interest margin and improve MidSouths non-interest income have all played into the turnaround in MidSouths earnings. The continued improvement in earnings in 2012 was achieved even with MidSouths loan balances effectively remaining flat. At the same time, MidSouths liquidity has also improved, with 5.7% growth in available-for-sale securities and 6.1% growth in earning assets.
There can be no full assurance that the local or national economies will not decline further, although there are positive signs of recovery. Because MidSouths historical lending strategy and its loan portfolio have been substantially dependent upon real estate, MidSouths profitability may be adversely affected if there are declines in the local real estate market.
In addition, the costs of regulatory compliance are expected to rise as federal, state and local governments attempt to respond to perceived problems in financial markets. A number of new regulations are expected to be introduced over the next few years that are likely to increase the compliance burden on financial institutions. It is reasonable to believe that new regulations may create a need to invest in certain resources, such as a full-time compliance officer, or similar position, in order to meet the requirements being mandated. This will make it more difficult for smaller community banks to control certain administrative overhead costs.
During 2012, management continued its focus on managing MidSouths net interest margin. MidSouth was able to reduce its interest costs related to deposits and interest-bearing liabilities, but our interest income declined and more than offset the decrease in interest expense. In 2012, MidSouths interest income decreased 5.0% to $9.6 million in 2012, down from $10.1 million in 2011. That decrease was mostly offset by the decline in total interest expense, which decreased 25.0%, from $1.6 million in 2011 to $1.2 million in 2012. The decrease in interest income was primarily due to lower interest rates in MidSouths loan portfolio, which is a direct result of the competitive pricing in MidSouths local market. To enhance interest income, management used investments in debt securities to increase margin, putting MidSouths excess liquidity to work. Management was also able to reduce MidSouths interest expense primarily through deposit pricing, but there is very little room for further reduction of deposit interest rates.
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Total non-interest income increased 15.0% from $2.0 million in 2011 to $2.3 million in 2012, and non-interest expense increased 6.7% from $8.9 million in 2011 to $9.5 million in 2012. These variances are discussed more fully later in this document.
In 2012, management continued to move troubled loans out of the portfolio and changed the composition of MidSouths investment portfolio, working to improve MidSouths interest rate risk position. Management will continue to monitor and manage the net interest margin in 2013; however, MidSouths ability to enhance core profitability is dependent on our ability to increase lending volumes and is also dependent on our communitys continued economic recovery. Over the past several years, MidSouth, like so many other financial institutions, has been focused on credit quality, improving profitability, improving capital ratios and working through the increased regulatory oversight that has been prominent in our industry during the period following the recession. MidSouths strategy for 2013 calls for growing MidSouths loan portfolio, improving non-interest income and looking for ways to manage/overcome the regulatory mandates that will likely impact profitability within the banking industry.
Critical Accounting Policies
The accounting principles we follow and our methods of applying these principles conform with accounting principles generally accepted in the United States and with general practices within the banking industry. In connection with the application of those principles to the determination of our allowance for loan and lease losses (ALLL), we have made judgments and estimates which have significantly impacted our financial position and results of operations.
Our management assesses the adequacy of the ALLL on a regular basis. This assessment includes procedures to estimate the ALLL and test the adequacy and appropriateness of the resulting balance. The ALLL consists of two portions: (1) an allocated amount representative of specifically identified credit exposure and exposures readily predictable by historical or comparative experience; and (2) an unallocated amount representative of inherent loss which is not readily identifiable. Even though the ALLL is composed of two components, the entire allowance is available to absorb any credit losses.
We establish the allocated amount separately for two different risk groups: (1) unique loans (commercial loans, including those loans considered impaired); and (2) homogenous loans (generally single family residential and consumer loans). In certain situations where consumer or residential mortgage loans are part of a larger relationship that is being evaluated for impairment, those loans are included in the ASC 310 provision calculation. We base the allocation for unique loans primarily on the projected collateral shortfall in relation to the recorded investment. We estimate losses on impaired loans based on estimated cash flows discounted at the loans original effective interest rate or the underlying collateral value. We also assign estimated loss ratios to our consumer portfolio; however, we base the estimated loss ratios for these homogenous loans on the category of consumer credit (e.g., automobile, residential mortgage, home equity) and not on the results of individual loan reviews.
The unallocated amount is particularly subjective and does not lend itself to exact mathematical calculation. We use the unallocated amount to absorb inherent losses which may exist as of the balance sheet date for such factors as historical loss rates, changes in the local or national economy, the depth of experience of the lending staff, changes in the lending policies, changes in the nature or volume of loan types, any concentrations of credit in any particular industry group, past due loan volumes and trends, the quality of loan reviews performed and changes in collateral values. After we assess the applicable factors, we evaluate the aggregate unallocated amount based on our managements experience.
We then test the resulting ALLL balance by comparing the balance in the allowance account to historical trends and peer information. Our management then evaluates the result of the procedures performed, including the result of our testing, and concludes on the appropriateness of the balance of the ALLL in its entirety. The provision resulting from the ALLL assessment is presented to the board of directors prior to the public reporting of financial information.
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Results of Operations
MidSouth had earnings of $1,601 for the year ended December 31, 2012 as compared to earnings of $1,062 for the year ended December 31, 2011. For the years ended December 31, 2012 and 2011, basic earnings per common share were $0.42 and $0.28, respectively, and the diluted earnings per common share were $0.24 and $0.17, respectively. The largest impact on MidSouths 2012 earnings was the recovery of $525 related to a loan that was charged off during 2009. That large recovery caused MidSouths allowance for loan losses to be excessively funded, creating the need to record a credit to provision for loan losses of $470. This compares with the 2011 provision for loan losses expense of $400. The result of the reversal of the provision in 2012 was an improvement in earnings of $870.
Net Interest Income
Net interest income represents the amount by which interest earned on various earning assets exceeds interest paid on deposits and other interest-bearing liabilities and is the most significant component of MidSouths earnings. Total interest income for the years ended December 31, 2012 and 2011 was $9,574 and $10,081, respectively, a decrease of 5.0%, and total interest expense was $1,231 and $1,640, respectively, a decrease of 24.9%. Net interest income for 2012 and 2011 totaled $8,343 and $8,441, respectively, a decrease of 1.2%. During 2011 and 2012, MidSouth continued to work through a number of troubled loan relationships, reducing loans through payoffs, collateral liquidations and charge-offs; however, MidSouths loan portfolio remained relatively unchanged when compared with 2011. The decrease in MidSouths interest income is directly related to the reduced rates in MidSouths loan portfolio. MidSouths loan rates have declined due to market competition and due to natural repricing as loans mature and are renewed. Also, since loan demand was relatively light in 2012, MidSouth took the excess funds received from loan pay downs and payoffs and looked for opportunities to purchase investment securities; however, the rates that were available in the securities market were lower than the loan rates that MidSouth was earning previously. This is evidenced by the fact that MidSouths investment securities increased, but interest income from those securities in 2012 remained nearly the same as investment interest income for 2011.
While the Federal Open Market Committee has announced that it intends to maintain the current Prime rate for an extended period of time, MidSouths management expects interest margins to be further compressed during 2013 due to loans repricing downward and due to competitive pressures that will certainly result in a number of loans being negotiated with lower rates that may be fixed for a longer period than management would prefer. Even with rates remaining low, management believes that loan volumes and demand will begin to increase in 2013 with the apparent improvements that are happening with the local economy. If that occurs, management will be able to use the expected cash flows from MidSouths investment portfolio, primarily from payments received on mortgage-backed securities and collateralized mortgage obligations, to fund future loan growth. Deposit volumes are also expected to increase, unless customers develop a comfort with investments based on the national stock markets; however, depositors may decide to pay off debt in order to reduce their interest expense, since there is seemingly little opportunity to earn an attractive rate on deposits.
Provision for Loan Losses
The provision for loan losses represents a charge to earnings necessary to establish an allowance for loan losses that, in managements evaluation, is adequate to provide coverage for estimated losses on outstanding loans and to provide for uncertainties in the economy. The provision for loan losses was a credit of $470 in the year ended December 31, 2012, resulting in an increase in earnings of $870 when compared with the $400 loan loss provision expense that was recorded for the year ended December 31, 2011. The large credit to the loan loss provision is directly related to a $525 recovery on a financial institution loan that had been charged off in mid-2009. During 2011 and into 2012, MidSouths recoveries of previously charged off loans began to increase, and during 2012, the number of relationships that were newly identified as impaired continued to decline when compared with 2010 and 2011.
The level of the allowance and the recording of loan loss provisions involve evaluation of uncertainties and matters of judgment. Based on the analyses that have been performed, management believes the allowance for loan losses at December 31, 2012 and 2011 to be adequate. The allowance for loan losses was 2.19% and 2.34% of total loans at December 31, 2012 and 2011, respectively. The reduction in the allowance was a direct result of the volume of the recoveries received from previously charged off loans, especially the recovery that was previously mentioned.
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Non-Interest Income
MidSouths non-interest income consists of service charges on deposits, fees on mortgage originations, fees from brokerage operations, other fees and commissions and gains on sales of available-for-sale securities. Total non-interest income for the year ended December 31, 2012 and 2011 was $2,251 and $1,962, respectively, an increase of $289 or 14.7%. The increase in non-interest income is primarily related to an increase in fees from mortgage originations of $320, increasing from $322 in 2011 to $642 in 2012, which is an increase of 99.4%. In addition, MidSouth experienced an increase in other fees and commissions of $107, or 21.5%. The increases noted above were offset by a $133 decrease in the gain from the sales of available-for-sale securities, going from $144 in 2011 to $11 in 2012, a decrease of 92.4%.
The increase in mortgage origination fees is related to MidSouths expansion of the mortgage loan department, adding two loan originators, an underwriter, a loan processor and a loan closer. This group of mortgage professionals was added to MidSouth in mid- to late-2012, and they increased the volume of loans closed and sold to investors significantly during the last four months of 2012. As shown in the increase in mortgage fee income, increasing volumes of mortgage loans closed and sold can produce significant earnings results.
The gain on sales of available-for-sale securities in 2011 was a direct result of a strategy that was carried out by management to reduce the interest rate risk in MidSouths portfolio. To accomplish the objective, specific securities, whose market values would be negatively affected by an instantaneous rate increase of 300 basis points, were sold and replaced by securities with less rate volatility. Carrying out this strategy helped MidSouth reduce its interest rate risk to a more acceptable level in accordance with regulatory guidelines.
The strategy carried out in 2012 was similar to the strategy carried out in 2011. MidSouth identified specific securities to sell based on their risk profiles. The targeted securities were sold at losses, and to offset those losses, management identified other securities to sell that were in gain positions. Those transactions resulted in the $11 net gain from sales of available-for-sale securities during 2012.
The increase in other fees and commissions is related to several different factors. Of the $107 increase, $59 was related to increased ATM network interchange fees, going from $388 in 2011 to $447 in 2012, an increase of 15.2%. Another $25 was due to the collection of a construction bond related to the construction of one of MidSouths branch offices that had been written off in 2011. The remaining increase is related to a series of smaller variances that are not considered material when considered individually.
Non-Interest Expense
Non-interest expenses consist of employee costs, occupancy expenses, furniture and equipment expenses, professional fees, advertising expense, data processing expense, foreclosed asset expenses, loss on disposals of premises and equipment, loss on sales of foreclosed assets, FDIC insurance and other operating expenses. Total non-interest expense for the years ended December 31, 2012 and 2011 was $9,463 and $8,941, respectively, an increase of $522, or 5.8%.
The largest expense item that caused the increase was salaries and benefits expense which increased $457, or 10.4%, from $4,399 in 2011 to $4,856 in 2012. This increase is due to several factors. In 2012, MidSouth reinstituted annual merit increases for employees, which resulted in an overall average of 4% increase in base salaries. Prior to 2012, MidSouth had been operating under a salary freeze that began in 2009, in order to reduce expenses during the height of the recession and the slow recovery that followed. Also, the addition of a team of mortgage professionals increased 2012 base salaries by $158 over 2011 mortgage salaries, specifically related to non-commissioned members of that team, going from $101 in 2011 to $259 in 2012. Mortgage origination commissions also increased due to the increased volume of mortgage loans closed, going from $161 in 2011 to $201 in 2012, an increase of $40, or 24.8%. Group insurance expense also increased $54, or 31.4%, going from $172 in 2011 to $226 in 2012.
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Another significant variance when comparing expenses from 2012 with 2011 relates to valuation losses on foreclosed assets. MidSouth recorded $420 in valuation losses on foreclosed real estate, $400 of which relates to the only remaining foreclosed property remaining on MidSouths balance sheet. The $400 valuation allowance was recorded considering a recently updated appraisal obtained on the property and a recent offer MidSouth received on the property.
MidSouth experienced significant decreases in several non-interest expenses including: (1) a decrease in losses on sales/disposals of premises and equipment of $319; (2) a decrease in FDIC insurance assessments of $288; (3) a decrease in the loss on sales of foreclosed assets of $140; and (4) a decrease in occupancy expenses of $88. The decrease in MidSouths FDIC insurance expense directly relates to the improvements in MidSouths classification with the FDIC due to MidSouths improved performance over the past two years. The decrease in occupancy expenses relates to the decrease in depreciation expense on MidSouths main office building improvements, which had been accelerated due to MidSouths original plans to demolish part of its main office building to construct a new main office building on the same site. MidSouths plans were altered when the economic downturn occurred and made investing in a new main office building nearly impossible due to capital considerations.
Income Taxes
Due to MidSouths previous cumulative losses, there was no income tax expense provision in 2012 or 2011.
Financial Condition
Balance Sheet Summary
MidSouths total assets were $252,299 and $238,651 at December 31, 2012 and 2011, respectively, an increase of 5.7%. Loans, net of allowance for loan losses, totaled $137,790 and $137,143 at December 31, 2012 and 2011, respectively, an increase of 0.5%, and investment securities totaled $69,925 and $66,175, respectively, an increase of 5.7%.
Total liabilities were $223,631 and $211,959 at December 31, 2012 and 2011, respectively, and stockholders equity was $28,668 and $26,692, respectively. A more detailed discussion of assets, liabilities and capital follows.
Loans
Loans are a large component of MidSouths assets and are a primary source of income. The loan portfolio is composed of six primary loan categories: commercial, financial and agricultural; commercial real estate; residential real estate; construction and land development; multifamily real estate; and consumer and other. The table on the next page sets forth the loan categories and the percentage of such loans in the portfolio at December 31, 2012 and 2011.
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Loan categories are as follows:
December 31, 2012 | December 31, 2011 | |||||||||||||||
Amount | Percentage | Amount | Percentage | |||||||||||||
(In Thousands,
except percentages) |
(In Thousands,
except percentages) |
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Commercial, financial and agricultural |
$ | 16,689 | 11.8 | % | $ | 20,229 | 14.4 | % | ||||||||
Real estate: |
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Commercial |
61,322 | 43.5 | 59,695 | 42.5 | ||||||||||||
Residential |
40,567 | 28.8 | 38,579 | 27.5 | ||||||||||||
Construction and land development |
16,571 | 11.8 | 14,366 | 10.2 | ||||||||||||
Multifamily |
1,088 | 0.8 | 1,180 | 0.8 | ||||||||||||
Consumer and other |
4,641 | 3.3 | 6,377 | 4.6 | ||||||||||||
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Total |
$ | 140,878 | 100.0 | % | $ | 140,426 | 100.0 | % | ||||||||
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As represented in the table, total loans increased slightly during 2012. Management continued to work out non-performing assets in 2012, but overall loan demand during 2012 was soft. Management seeks to grow the loan portfolio in 2013, and MidSouths local market has shown recent signs of recovery. Management intends to originate loans in a very orderly fashion and to monitor loans tightly once originated to maintain maximum possible asset quality, especially considering the economic issues from recent years.
MidSouth follows the provisions of ASC 310, Receivables , as this standard applies to impaired loans, except for large groups of smaller-balance homogeneous loans that are collectively evaluated for impairment including residential mortgage and consumer installment loans.
A loan is impaired when it is probable that MidSouth will be unable to collect the scheduled payments of principal and interest due under the contractual terms of the loan agreement. Impaired loans are measured at the present value of expected future cash flows discounted at the loans effective interest rate, at the loans observable market price, or the fair value of the collateral if the loan is collateral dependent. If the measure of the impaired loan is less than the recorded investment in the loan, MidSouth recognizes an impairment by creating a valuation allowance with a corresponding charge to the provision for loan losses or by adjusting an existing valuation allowance for the impaired loan with a corresponding charge or credit to the provision for loan losses.
MidSouths single family residential mortgage and consumer loans, which total approximately $40,567 and $1,301, respectively at December 31, 2012, are divided into various groups of smaller-balance homogeneous loans that are collectively evaluated for impairment and thus are not subject to the provisions of ASC 310. Substantially all other loans of MidSouth are evaluated for impairment under the provisions of ASC 310.
MidSouth considers all loans subject to the provisions of ASC 310 that are on nonaccrual status to be impaired. Loans are placed on nonaccrual status when doubt as to timely collection of principal or interest exists, or when principal or interest is past due 90 days or more unless such loans are well-secured and in the process of collection. Delays or shortfalls in loan payments are evaluated with various other factors to determine if a loan is impaired. Generally, delinquencies under 90 days are considered insignificant unless certain other factors are present which indicate impairment is probable. The decision to place a loan on nonaccrual status is also based on an evaluation of the borrowers financial condition, collateral, liquidation value, and other factors that affect the borrowers ability to pay.
Generally, at the time a loan is placed on nonaccrual status, all interest accrued on the loan in the current fiscal year is reversed from income, and all interest accrued and uncollected from the prior year is charged off against the allowance for loan losses. Thereafter, interest on nonaccrual loans is recognized as interest income only to the extent that cash is received and future collection of principal is not in doubt. If the collectability of outstanding principal is doubtful, such interest received is applied as a reduction of principal. A nonaccrual loan may be restored to accruing status when principal and interest are no longer past due and unpaid and future collection of principal and interest on a timely basis is not in doubt. There were 27 nonaccrual loans totaling $5,673 and 39 nonaccrual loans totaling $7,946 as of December 31, 2012 and December 31, 2011, respectively.
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Other loans may be classified as impaired when the current net worth and financial capacity of the borrower or of the collateral pledged, if any, is viewed as inadequate. In those cases, such loans have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt, and if such deficiencies are not corrected, there is a probability that MidSouth will sustain some loss. In such cases, interest income continues to accrue as long as the loan does not meet MidSouths criteria for nonaccrual status.
Generally MidSouth also classifies as impaired any loans the terms of which have been modified in a troubled debt restructuring. Interest is accrued on such loans that continue to meet the modified terms of their loan agreements. MidSouth had 15 loans that had terms modified in a troubled debt restructuring at December 31, 2012, and had 11 such loans at December 31, 2011.
MidSouths charge-off policy for impaired loans is similar to its charge-off policy for all loans in that loans are charged-off in the month when they are considered uncollectible.
At December 31, 2012 and 2011, MidSouth had $7,723 and $12,663, respectively, in impaired loans outstanding and no loans past due 90 days that were still accruing interest.
At December 31, 2012 and 2011, there were $18,509 and $21,188, respectively, in loans included in MidSouths internal classified loan list. Loans are listed as classified when information obtained about possible credit problems of the borrower has prompted management to question the ability of the borrower to comply with the agreed repayment terms of the loan agreement. The volume of loan classifications could represent or be a result of trends or uncertainties which management realizes could potentially impact future operating results, liquidity or capital resources if not properly monitored and managed.
The allowance for loan losses is discussed under Provision for Loan Losses. MidSouth maintains its allowance for loan losses at an amount considered by management to be adequate to provide for the possibility of loan losses in the loan portfolio. MidSouth does not originate, make or service subprime loans.
Essentially all of MidSouths loans originate from Rutherford and adjacent counties in Tennessee. MidSouth seeks to exercise prudent risk management in lending, including diversification by loan category and industry segment, as well as by identification of credit risks.
MidSouths management believes there are loan opportunities in MidSouths primary market area for potential growth in the loan portfolio. In the past, MidSouth has targeted commercial business lending, commercial and residential real estate lending and consumer lending. MidSouths lending practices have largely been driven by the local market, which historically has been based on real estate development due to the growth of the population in the Rutherford County market. Management seeks to build a loan portfolio which is capable of adjusting to swings in the interest rate market, and it is MidSouths policy to maintain a diverse loan portfolio not truly dependent on any particular market or industry segment. Portfolio diversification is even more critical during stressed economic times. Management has set a goal for loans to approximate between 85% and 90% of deposits, although over the past several years, MidSouths ratio of loans to deposits has decreased to below 65%. Even though that does create more liquidity for MidSouth, it impacts MidSouths earnings, since a banks core earnings are typically driven by the volume of its lending activities, and the rates earned on those assets are usually much higher than other interest-earning assets.
Securities
Securities totaled $69,925 and $66,175 at December 31, 2012 and 2011, respectively, and were a significant component of MidSouths earning assets. MidSouth follows the provisions of ASC 320, Investments Debt and Equity Securities . Under the provisions of the Standard, securities are classified in three categories and accounted for as follows:
| Debt securities that MidSouth has the positive intent and ability to hold to maturity are classified as held-to-maturity securities and reported at amortized cost. |
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| Debt and equity securities that are bought and held principally for the purpose of selling them in the near term are classified as trading securities and reported at fair value, with unrealized gains and losses included in earnings. |
| Debt and equity securities not classified as either held-to-maturity securities or trading securities are classified as available-for-sale securities and reported at fair value, with unrealized gains and losses excluded from earnings and reported in a separate component of stockholders equity. |
MidSouths classification of securities as of December 31, 2012 is as follows:
Available-for-Sale | ||||||||
Amortized
Cost |
Estimated
Market Value |
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(In Thousands) | ||||||||
U.S. Treasury and other U.S. |
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Government agencies and corporations |
$ | 2,240 | $ | 2,260 | ||||
State and municipal securities |
18,242 | 18,284 | ||||||
Mortgage-backed securities |
48,221 | 49,381 | ||||||
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$ | 68,703 | $ | 69,925 | |||||
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MidSouths classification of securities as of December 31, 2011 is as follows:
Available-for-Sale | ||||||||
Amortized
Cost |
Estimated
Market Value |
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(In Thousands) | ||||||||
U.S. Treasury and other U.S. |
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Government agencies and corporations |
$ | 4,414 | $ | 4,433 | ||||
Mortgage-backed securities |
60,871 | 61,742 | ||||||
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$ | 65,285 | $ | 66,175 | |||||
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No securities have been classified as trading or held-to-maturity.
As evidenced by the increase in investment securities from 2011 to 2012, MidSouths management purchased securities as increased deposits created additional liquidity. The majority of the securities purchased were state and municipal securities, which were targeted for their favorable interest rates and to cover potential interest rate risk in MidSouths portfolio.
Also, a few of MidSouths securities were sold during 2012 to capitalize on gains that were used to offset some changing conditions relative to specific securities within MidSouths portfolio. As a result of those sales, MidSouth realized net gains on sales of available-for-sale securities of $11. In 2011, some of MidSouths securities were strategically sold to reduce interest rate risk for certain securities in the investment portfolio. As a result of those sales, MidSouth realized gains on available-for-sale securities of $144.
Deposits
Total deposits, which are the principal source of funds for MidSouth, totaled $221,752 and $204,632 at December 31, 2012 and 2011, respectively, which is an increase of $17,120, or 8.4%. During 2012, MidSouths money market deposit accounts increased $10,811, or 21.9%, NOW accounts increased $3,771, or 11.8%, and noninterest-bearing deposit accounts increased $8,184, or 26.6%. MidSouths certificates of deposit of $100,000 or
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more increased by $1,550, or 5.1%, when comparing December 31, 2012 with December 31, 2011, while certificates of deposit less than $100,000 decreased $6,925, or 12.8%, during 2012. MidSouths individual retirement accounts of $100,000 or more decreased by $787, or 37.4%, when comparing December 31, 2012 with December 31, 2011, and individual retirement accounts less than $100,000 increased $260, or 6.9%, during 2012. Savings accounts increased by 11.5%, growing from $2,231 at December 31, 2011, to $2,487 at December 31, 2012.
MidSouths 2011 strategy relative to reducing dependence on non-core funding continued in 2012 and was effective, since MidSouths brokered deposits were reduced by 11.7%, from $24,202 at December 31, 2011 to $21,374 at December 31, 2012. MidSouths brokered deposits are included in the changes noted above in certificates of deposit of $100,000 or more.
MidSouth targets local consumers, professionals, local governments and commercial businesses as its central client base; therefore, deposit instruments in the form of checking accounts, savings accounts, money market deposit accounts, certificates of deposit and individual retirement accounts are offered to customers.
Management believes Rutherford County and the surrounding area is a viable market offering growth opportunities for MidSouth; however, MidSouth competes with more than 20 other financial institutions that have offices in Rutherford County, including large super-regional banks, regional banks, and other community banks and credit unions; therefore, no assurances of market growth can be given. Even though MidSouth is in a very competitive market, management currently believes that its market share can be expanded. Management firmly believes that its position as Rutherford Countys only locally-owned financial institution that offers personalized service will contribute to quality loan and deposit growth; however, with the low-rate deposit environment that currently exists, a number of depositors are looking for alternative ways of obtaining returns on their money. As a result, some deposit customers are using their funds to pay off debt on larger items like automobiles or houses, or some are moving funds from deposits into equity investments.
Liquidity and Asset Management
MidSouths management seeks to maximize net interest income by managing MidSouths assets and liabilities within appropriate constraints on capital, liquidity and interest rate risk. Liquidity is the ability to maintain sufficient cash levels necessary to fund operations, meet the requirements of depositors and borrowers and fund attractive lending and investment opportunities. MidSouths primary source of liquidity is its core deposit base, and with its current liquidity surplus, MidSouth has plenty of room for loan growth before it has to look for innovative ways for growing its deposits. In addition, available-for-sale securities, loan payments, investment security payments and short-term borrowing lines at the Federal Home Loan Bank and correspondent banks provide secondary sources of liquidity. At the present time, there are no known trends or any known commitments, demands, events or uncertainties that will result in or that are reasonably likely to result in MidSouths liquidity position changing materially.
Interest rate risk (sensitivity) management focuses on the earnings risk associated with changing interest rates. Management seeks to maintain profitability in both short- and long-term earnings through funds management/interest rate risk management. MidSouths rate sensitivity position has an important impact on earnings. Senior management of MidSouth periodically analyzes MidSouths rate sensitivity position, meeting with the Asset Liability Committee at least quarterly. These meetings focus on the spread between the cost of funds and interest yields generated primarily through loans and investments and the related impacts of repricing assets and liabilities on earnings and on MidSouths capital.
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The following table shows the rate sensitivity gaps for different time periods as of December 31, 2012:
Interest Rate Sensitivity Gaps
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1-90
Days |
3 months to 12 months |
1 to 5 Years |
Over
5 Years |
Total | |||||||||||||||
Interest-earning assets |
$ | 80,502 | $ | 8,507 | $ | 65,514 | $ | 82,244 | $ | 236,767 | ||||||||||
Interest-bearing liabilities |
124,312 | 40,137 | 19,446 | | 183,895 | |||||||||||||||
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Interest-rate sensitivity gap |
$ | (43,810 | ) | $ | (31,630 | ) | $ | 46,068 | $ | 82,244 | $ | 52,872 | ||||||||
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Cumulative gap |
$ | (43,810 | ) | $ | (75,440 | ) | $ | (29,372 | ) | $ | 52,872 | |||||||||
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Capital Position and Dividends
MidSouths principal regulators have established minimum risk-based capital requirements and leverage capital requirements for MidSouth. These guidelines classify capital into two categories of Tier I and Total risk-based capital. Total risk-based capital consists of Tier I (or core) capital (essentially common equity less intangible assets) and Tier II capital (essentially qualifying long-term debt, of which MidSouth has none, and a part of the allowance for loan losses). In determining risk-based capital requirements, assets are assigned risk-weights of 0% to 100%, depending on regulatory assigned levels of credit risk associated with such assets. The risk-based capital guidelines require MidSouth to have a total risk-based capital ratio of 8.0% and a Tier I risk-based capital ratio of 4.0%. At December 31, 2012 and 2011, MidSouths total risk-based capital ratios were 17.8% and 17.3%, respectively, and its Tier I risk-based capital ratios was 16.5% and 16.0%, respectively. The required Tier I leverage capital ratio (Tier I capital to average assets for the most recent quarter) for MidSouth is 4.0%. At December 31, 2012 and 2011, MidSouth had a leverage ratio of 11.2% for both periods. The increases in the risk-based capital ratios are attributed to MidSouths earnings for 2012. The Tier I leverage ratio did not change due to an increase in average assets from 2011 to 2012
At December 31, 2012 and 2011, total stockholders equity was $28,668 and $26,692, respectively, or 11.4% and 11.2%, respectively, of total assets. The change in stockholders equity resulted from earnings of $1,601, an increase in unrealized gains on available-for-sale securities of $332, net proceeds from the issuance of common stock totaling $24 and stock-based compensation expense of $19.
At December 31, 2009, MidSouth initiated an offering of convertible voting noncumulative Series 2009A Preferred Stock. A total of 1,024,728 shares of Series 2009A Preferred Stock were sold during the offering. Each share of Series 2009A Preferred Stock automatically converts into two shares of MidSouths common stock on March 31, 2015, but are convertible at any time prior to the mandatory conversion date at the discretion of the stockholder. Also, for every five shares of Series 2009A Preferred Stock purchased, stockholders received one warrant to purchase one share of MidSouths common stock at a price equal to 75% of MidSouths book value per common share as of the preceding quarter-end. A total of 204,939 warrants were issued with the Series 2009A Preferred Stock.
To date, 2,000 shares of Series 2009A Preferred Stock have been converted by stockholders into 4,000 shares of MidSouths common stock, in accordance with the terms of the Preferred Stock Offering Circular. As of December 31, 2012 and 2011, MidSouth had 1,022,728 shares of Series 2009A Preferred Stock outstanding for both periods. During 2012, 6,369 of the detachable warrants were exercised, and during 2011, 965 of the detachable warrants were exercised. As of December 31, 2012 and 2011, MidSouth had outstanding Series 2009A Preferred Stock warrants of 196,225 and 202,594, respectively.
Based on the stated interests of local investors, MidSouth initiated a second preferred stock offering in the first quarter of 2011 for Series 2011-A Preferred Stock, which was also convertible voting noncumulative preferred stock. Similar to the Series 2009A Preferred Stock, this issue of preferred stock automatically converts into two shares of MidSouths common stock and will be convertible at any time prior to the mandatory conversion date of May 31, 2016 at the discretion of stockholders. Like the Series 2009 Preferred Stock, for every five shares of Series 2011-A Preferred Stock purchased, stockholders received one warrant to purchase one share of MidSouths common stock at a price equal to 85% of MidSouths book value per common share as of the preceding quarter-end. During
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2011, MidSouth sold 242,350 shares of Series 2011-A Preferred Stock, which resulted in the issuance of 48,469 detachable warrants to purchase common stock. None of the Series 2011-A Preferred Stock have been converted to common stock. As of December 31, 2012 and 2011, there were 242,350 shares of Series 2011-A Preferred Stock outstanding for both periods. In 2012, 928 of the Series 2011-A warrants were exercised, while none were exercised during 2011. As of December 31, 2012 and 2011, MidSouth had outstanding Series 2011-A Preferred Stock warrants of 47,541 and 48,469, respectively.
No shares of MidSouths common voting stock were redeemed for the years ending December 31, 2012 and 2011.
There is no established trading market for MidSouths common stock. Privately negotiated trades may involve MidSouths directors and officers, and their interests and, accordingly, may not be reliable indicators of value.
In October, 2004, the Shareholders of MidSouth approved the MidSouth Banks 2004 Stock Option Arrangement (the Arrangement). The Arrangement provides for the granting of stock options, and authorizes the issuance of common stock upon the exercise of such options, for up to 380,000 shares of common stock, to employees and organizers of MidSouth and up to 143,080 shares of common stock for future use as decided by the Directors of MidSouth. Under the Stock Option Arrangement, stock option awards may be granted in the form of incentive stock options or non-statutory stock options, and generally vest over a five-year period with a ten-year option to purchase. Exercise prices of incentive stock options must be equal to or greater than 100% of the fair market value of the common stock on the grant date.
At both December 31, 2012 and 2011, 495,000 shares of the options had been granted. All of the options granted prior to 2008 were granted at $10 per share. There were 5,000 options granted during 2008 at $12.80 per share and another 25,000 options granted during 2009 at $5.00 per share. There were 19,000 options forfeited in 2011 and another 31,000 options forfeited in 2012. Of the options granted, 334,800 and 365,800 were outstanding at December 31, 2012 and 2011, respectively.
During 2012, the Board of Directors of MidSouth Bank evaluated MidSouths financial improvement since 2009, and to reward and incent MidSouths personnel and directors for the progress made by MidSouth during the recessionary period, the Board elected to change the exercise price of the options that were outstanding at November 30, 2012 to $3.65 per share. This was done through the issuance of amendments to the original stock option agreements, and the value was based upon a valuation of MidSouths stock that was conducted by an independent third party located outside MidSouths local market. As of November 30, 2012, there were 334,800 stock options repriced.
In addition to changing the exercise price of the options, the outstanding options became non-incentive stock options, and a new vesting schedule was established for the options. The new vesting schedule was established as 20% vesting per year, with the first vesting occurring on December 31, 2012 and the vesting period extending through December 31, 2016. The expiration date of the options was also changed to December 31, 2032. Of the options granted, 334,800 were outstanding at December 31, 2012. At December 31, 2012 and 2011, 66,960 and 352,600 options were exercisable, respectively.
FDICIA . Under the Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA), the federal banking regulators have assigned each insured institution to one of five categories (well capitalized, adequately capitalized or one of three undercapitalized categories) based upon the three measures of capital adequacy discussed above. Institutions which have a Tier I leverage capital ratio of 5%, a Tier I risk based capital ratio of 6% and a total risk based capital ratio of 10% are defined as well capitalized. All institutions, regardless of their capital levels, are restricted from making any capital distribution or paying any management fees that would cause the institution to fail to satisfy the minimum levels for any of its capital requirements for adequately capitalized status. MidSouth currently meets the requirements for well capitalized status.
An institution that fails to meet the minimum level for any relevant capital measure (an undercapitalized institution) may be: (i) subject to increased monitoring by the appropriate federal banking regulator; (ii) required to submit an acceptable capital restoration plan within 45 days (which must be guaranteed by the institutions holding company); (iii) subject to asset growth limits; and (iv) required to obtain prior regulatory approval for acquisitions,
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branching and new lines of businesses. The bank regulatory agencies have discretionary authority to reclassify a well-capitalized institution as adequately capitalized or to impose on an adequately capitalized institution requirements or actions specified for undercapitalized institutions if the agency determines that the institution is in an unsafe or unsound condition or is engaging in an unsafe or unsound practice.
A significantly undercapitalized institution may be subject to a number of additional requirements and restrictions, including orders to sell sufficient voting stock to become adequately capitalized, requirements to reduce total assets and cessation of receipt of deposits from correspondent banks. Critically undercapitalized institutions are subject to the appointment of a receiver or conservator.
Under FDICIA, bank regulatory agencies have prescribed safety and soundness guidelines for all insured depository institutions relating to internal controls, information systems, internal audit systems, loan documentation, credit underwriting, interest rate exposure, asset growth, asset quality, earnings and compensation.
On February 7, 2011, the Federal Deposit Insurance Corporation (FDIC) Board of Directors adopted a final rule related to deposit insurance assessments, which redefined the deposit insurance assessment base as required by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank); made changes to assessment rates; implemented Dodd-Franks Deposit Insurance Fund (DIF) dividend provisions; and revised the risk-based assessment system for all large insured depository institutions (IDIs), generally, those institutions with at least $10 billion in total assets. As a result of this final rule, nearly all of the 7,600-plus institutions with assets less than $10 billion, including MidSouth Bank, began paying smaller assessments. With the change in the calculation of the deposit insurance assessment, MidSouths FDIC insurance expense for 2011 decreased 31.8% to $501, and MidSouths 2012 FDIC insurance expense declined 57.5%, to $213. According to the last assessment statement received, MidSouth is assessed annually at the rate of 0.09% of average total assets adjusted for average tangible equity for deposit insurance, but that rate can be changed by the FDIC based on Risk Category or other regulatory needs, such as special assessments. The assessments historically have been paid quarterly; however, at the end of 2009, the FDIC required financial institutions to prepay their assessments for 2010, 2011 and 2012. For MidSouth Bank, that was a total prepaid assessment of $1,922 that is being expensed based on the assessment statements received from the FDIC. At December 31, 2012 and 2011, the remaining prepaid assessment balance was $546 and $745, respectively.
Monetary Policy . MidSouth is affected by commercial bank credit policies of regulatory authorities, including the FRB. An important function of the FRB is to regulate the national supply of bank credit in order to attempt to combat recessionary and curb inflationary pressures. Among the instruments of monetary policy used by the FRB to implement these objectives are: open market operations in U.S. Government securities, changes in discount rates on member borrowings, changes in reserve requirements against bank deposits and limitations on interest rates which member banks may pay on time and savings deposits. These means are used in varying combinations to influence overall growth of bank loans, investments and deposits, and may also affect interest rates charged on loans or paid on deposits. The monetary policies of the FRB have had a significant effect on the operating results of commercial banks, including nonmembers as well as members, in the past and are expected to continue to do so in the future.
Contractual Obligations
MidSouth has the following contractual obligations as of December 31, 2012:
(In Thousands) |
Less
1 Year |
1 3
Years |
3 5 Years |
More
Than 5 Years |
Total | |||||||||||||||
Securities sold under agreement to repurchase |
$ | 1,044 | | | | $ | 1,044 | |||||||||||||
Operating leases |
81 | 164 | 164 | 559 | 968 | |||||||||||||||
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Total |
$ | 1,125 | $ | 164 | $ | 164 | $ | 559 | $ | 2,012 | ||||||||||
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Off Balance Sheet Arrangements
At December 31, 2012, MidSouth had unfunded loan commitments outstanding of $41,391 and outstanding standby letters of credit of $677. Because these commitments generally have fixed expiration dates and many will expire without being drawn upon, the total commitment level does not necessarily represent future cash requirements. If needed to fund these outstanding commitments, MidSouth has the ability to liquidate securities available-for-sale or, on a short-term basis, to purchase Federal funds from correspondent banks or borrow from the Federal Home Loan Bank. Additionally, MidSouth could sell participations in these or other loans to correspondent banks. As mentioned above, MidSouth has been able to fund its ongoing liquidity needs through its stable core deposit base, loan payments, investment security maturities/pay downs and short-term borrowings.
Impact of Inflation
Although interest rates are significantly affected by inflation, the inflation rate is immaterial when reviewing MidSouths results of operations.
Quantitative and Qualitative Disclosures About Market Risk
MidSouths primary component of market risk is interest rate volatility. Fluctuations in interest rates will ultimately impact both the level of income and expense recorded on a large portion of MidSouths assets and liabilities, and the market value of all interest-earning assets and interest-bearing liabilities, other than those which possess a short term to maturity. Based upon the nature of MidSouths operations, MidSouth is not subject to foreign currency exchange or commodity price risk.
Management seeks to maintain profitability in both immediate and long-term earnings through funds management/interest rate risk management. Interest rate risk (sensitivity) management deals with the potential impact on earnings associated with changing interest rates using various rate change (shock) scenarios. MidSouths rate sensitivity position has an important impact on earnings. Senior management monitors MidSouths rate sensitivity position throughout each month, and then quarterly the Asset Liability Committee (ALCO) of MidSouth meets to analyze the rate sensitivity position and other aspects of asset/liability management. These meetings cover the spread between the cost of funds (primarily time deposits) and interest yields generated primarily through loans and investments, rate shock analyses, liquidity and dependency positions, and other areas necessary for proper balance sheet management.
As of and For the Three and Nine Months Ended September 30, 2013 and 2012
Recent Developments
Since mid-2008, the United States economy has been struggling through an extended recessionary/post-recessionary period, and that period of time has proven to be extremely challenging for banks across the nation. Since mid-2008, 480 banks in the United States have been closed by the FDIC. The first Tennessee bank failures since November 2002 occurred during 2012, and while only five Tennessee banks have been closed, a number of other banks in the state have felt the effects of the sluggish economy resulting in credit quality issues. Dramatic slowdowns in the housing industry, with falling home prices and increasing foreclosures and unemployment, resulted in significant and prolonged problems for financial institutions, including government-sponsored entities and investment banks. The local economy is showing stronger signs of recovery and continues to improve.
MidSouth Bank, with the financial support of its Board of Directors and local community, has developed solid capital ratios that currently exceed its regulatory peer group. As a result of MidSouths capital position, it is positioned to grow; however, growth in loans in the local market continues to be slower than anticipated or desired.
Rutherford County, MidSouths primary market, has been showing signs of economic improvement over the past couple of years, especially in terms of local real estate. Several local developers have started working on new developments around the county, and local home inventories have shrunk in comparison with the high levels of inventory that were sitting in the market in previous years. Also, Rutherford County has experienced a 32% increase in home sales from January 2012 to January 2013, according to local newspaper, The Murfreesboro Post. The same article reported that Rutherford County has issued 1,290 building permits so far in 2013, up from 820 for
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the same period in 2012. There can be no full assurance that the local or national economies will not slide back into another period of recession, although there are positive signs of recovery. Because MidSouths historical lending strategy and its loan portfolio have been substantially dependent upon real estate, MidSouths profitability may be adversely affected if there are declines in the local real estate market. In managements view, MidSouths ability to grow its loan portfolio will depend significantly on an increase in loans secured, in whole or in part, by real estate.
The local unemployment rate was at 6.8% in August 2013, which is the same as the unemployment rate as of August 2012. This compares favorably with the state unemployment rate, which was 8.5% in August 2013. In addition, in a report produced by the U.S. Department of Labors Bureau of Labor Statistics, Rutherford County was ranked in the top ten large counties in the country in percent increase in employment from 2011 to 2012, and more recently Bureau of Labor Statistics reported that Rutherford County is in the nations top echelon in terms of employment growth. While national employment, measured by the Quarterly Census of Employment and Wages program, is up 1.8 percent, Rutherford County demonstrated an impressive 5.3 percent increase, making it third in the nation for percentage increase in employment. In addition, the report showed that Rutherford County had a 5.9 percent increase in average weekly wages, surpassing the U.S. average of 5.4 percent, and placing the county in the top 45 percent of large U.S. counties included in the ranking.
Local employment opportunities have been further enhanced by announcements like that of global distributor Amazon, which has built and is now operating a new one-million square foot fulfillment center in Murfreesboro, Tennessee that employs 1,200-plus workers. In addition, Saks recently located in Rutherford County and employs more than 300 workers, and Nissan continues to expand and add employees in its plant located in Smyrna, Rutherford County, Tennessee.
Residential growth has been a primary economic driving force for Rutherford County for many years. According to the Rutherford County Chamber of Commerces website, Rutherford County population has experienced 47.6 percent growth during the period 2000-2011, pushing the countys estimated population to an estimated count of 276,375. The county mayor noted in a March 2011 edition of the Daily News Journal newspaper that the county has opportunities for work, opportunities for an excellent education from our local school systems, opportunities for higher education at MTSU, and opportunities for all the amenities in life, including shopping and restaurants and entertainment. For some time now, Rutherford County has been ranked as either the fastest or the second fastest growing county in Tennessee and is currently the fifth largest county in the state. According to statistics provided by the Rutherford County Chamber of Commerce, the county is also ranked as the 30th fastest growing county in the United States. Rutherford Countys population growth rate continues to drive the local economy primarily through real estate needs.
On October 14, 2008, the FDIC announced the Temporary Liquidity Guarantee Program (TLGP). The main goals of the TLGP program were to: (i) strengthen confidence, and (ii) encourage liquidity, in the banking system. The TLGPs Debt Guarantee Program guarantees certain issuances of senior unsecured debt of eligible institutions, including FDIC-insured banks and thrifts, as well as certain holding companies, and the TLGPs Transaction Account Guarantee Program provided full deposit insurance coverage for noninterest-bearing deposit transaction accounts in FDIC-insured institutions, regardless of the dollar amount. The Debt Guarantee Program expired December 31, 2012, and the Transaction Account Guarantee Program also expired on December 31, 2012.
Results of Operations
MidSouth had earnings of $1,482 for the first nine months of 2013, or $0.38 basic earnings per share, compared to earnings of $1,213, or $0.31 basic earnings per share, for the same period of 2012. The diluted earnings per share was $0.23 per share for the first nine months of 2013 and $0.19 per share for the same period of 2012.
During the first nine months of 2013, there were a number of variances when compared with the first nine months of 2012, but the most significant variances occurred in income from fees on mortgage originations and employee salaries and benefits expense. These variances are discussed on the pages that follow.
MidSouth had earnings of $514 for the third quarter of 2013, or $0.13 basic earnings per share, compared to earnings of $443, or $0.11 basic earnings per share, for the same period of 2012. The diluted earnings per share was $0.08 per share for the third quarter of 2013 and $0.07 per share for the same period of 2012.
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Management considers the local economy to be improving based on the reduction of current inventories of residential real estate and based on feedback from Board members and others in the real estate community. Lot inventories in the local real estate market have been reducing, which is a sign of increased construction and development in the market. Also, the real estate values in some areas of MidSouths market have been improving. In addition, the unemployment rate in Rutherford County is among the lowest in the state and has remained unchanged over the past year at 6.8% in both August 2012 and August 2013. The State of Tennessees unemployment rate increased slightly from 8.1% in August 2012 to 8.5% in August 2013.
Net Interest Income
Net interest income represents the amount by which interest earned on various earning assets exceeds interest paid on deposits and other interest-bearing liabilities and is the most significant component of MidSouths earnings. Total interest income for the nine months ended September 30, 2013 was $7,247, and total interest expense was $697, resulting in net interest income for the first nine months of 2013 totaling $6,550. For the same period in 2012 total interest income was $7,186, and total interest expense was $955, which resulted in net interest income of $6,231. This represents a 0.8% increase in total interest income, a 27.0% decrease in total interest expense and a 5.1% increase in net interest income when comparing the same periods from 2013 and 2012. When comparing the variances related to interest income and interest expense for the first nine months of 2013 and the first nine months of 2012, the increase and decrease, respectively, were attributed to the following: (1) the increase in interest income is due to the increase in loan demand; and (2) the decrease in interest expense is primarily due to MidSouths management of the rates on interest-bearing liabilities over the past year, effectively reducing the cost of interest-bearing liabilities from 0.73% for the first nine months of 2012 to 0.51% for the first nine months of 2013.
Total interest income for the three months ended September 30, 2013 was $2,506, and total interest expense was $220 for the same period. Net interest income for that period totaled $2,286. For the same period in 2012, total interest income was $2,458, and total interest expense was $297. Net interest income for the third quarter of 2012 was $2,161. This represents a 2.0% increase in total interest income, a 25.9% decrease in interest expense, and an increase of 5.8% in net interest income when comparing the same quarters from 2012 and 2013.
The Federal Reserve has not raised interest rates over the past three years, and management understands that the Federal Reserve has indicated that interest rates will remain unchanged for the foreseeable future. In the recent Federal Reserve press release dated September 18, 2013, the Federal Open Market Committee stated that it decided to keep the target range for the federal funds rate at 0 to 1/4 percent and currently anticipates that this exceptionally low range for the federal funds rate will be appropriate at least as long as the unemployment rate remains above 6-1/2 percent, inflation between one and two years ahead is projected to be no more than a half percentage point above the Committees 2 percent longer-run goal, and longer-term inflation expectations continue to be well anchored. Based on that report and others like it, management believes that MidSouths net interest margin should remain relatively stable over the remainder of 2013, depending upon rates offered by competitors in its local markets and depending upon the stability of MidSouths loan and deposit portfolios.
Provision for Loan Losses
The provision for loan losses represents a charge to earnings necessary to establish an allowance for loan losses that, in managements evaluation, is adequate to provide coverage for estimated losses on outstanding loans and to provide for uncertainties in the economy. As a result of evaluating the allowance for loan losses at September 30, 2013, management recorded no provision for the first nine months of 2013. There was also no provision for loan losses recorded during the first nine months of 2012. This is due to the amount of recoveries received on charged off loans and due to the decline in the number of relationships that were newly identified as impaired in both 2012 and 2013. Those items, when compared with 2010 and 2011, resulted in the determination by management that no additional provision was necessary.
Until the economy fully recovers, management recognizes that more borrowers may develop cash flow issues that could adversely affect their ability to fully pay back their loans. Our reserve analysis and our provisions to the allowance for loan losses factor in these considerations, but if the economy weakens or does not recover more quickly, or if there is an increase in loan volumes, MidSouth may have to record additional loan loss provisions in the future. The total allowance for loan losses was $2,860, or 1.84% of loans, at September 30, 2013, and $3,088, or 2.19% of loans, at December 31, 2012. The level of the allowance maintained by MidSouth involves evaluation of uncertainties and matters of judgment. Management believes the allowance for loan losses at September 30, 2013 and December 31, 2012 to be adequate.
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Non-Interest Income
MidSouths non-interest income consists of service charges on deposits, fees on mortgage originations, fees from brokerage operations and other fees and commissions. Total non-interest income for the nine months ended September 30, 2013 was $2,452, compared with $1,654 for the same period in 2012, an increase of $798, or 48.2%. The primary factors in the increase were: (1) an increase in mortgage origination fees of $742 or 177.1% when comparing the first nine months of 2013 with the same period in 2012; and (2) an increase brokerage fee income of $47, or 10.6%. These increases were offset by a $36, or 12.0%, decrease in service charges on deposits when comparing the first nine months of 2013 with same period in 2012.
Total non-interest income for the three months ended September 30, 2013 was $734 and was $662 for the same period in 2012, which is an increase of $72, or 10.9%. The primary reason for the increase was the increased other fees and commissions which grew from $136 in the third quarter of 2012 to $194 in the third quarter of 2013, an increase of $58, or 42.6%. Mortgage origination income also increased by $48, or 21.1%, when comparing the third quarter of 2013 with the third quarter of 2012.
Management believes that non-interest income will continue to supplement core earnings for MidSouth. Management also believes that brokerage fees will be fairly stable for the remainder of 2013; however, if the national stock markets increase or decrease in value, MidSouths brokerage income will be directly affected, since many of MidSouths fee opportunities in brokerage directly correlate to the movement of the stock markets.
In relation to mortgage lending, refinance activity has effectively been reduced to minimal levels since mortgage loan rates increased at the end of the second quarter of 2013. To offset the decline in refinance volume, MidSouth hired additional loan originators during the third quarter of 2013 and has plans to add more loan originators in the fourth quarter of the year. If MidSouth is able to add more mortgage originators, MidSouths mortgage origination income may improve over the remainder of 2013; however, if unable to hire additional mortgage loan originators, then MidSouths mortgage loan earnings may remain flat or decline over the last quarter of the year. This is a strategic decision that was made by management, since enhancing mortgage volumes and sales is expected to offset and exceed the additional overhead costs from bringing on additional personnel.
Service charge income on deposits have declined in comparison with the prior year, and they may continue to decrease depending on the federal governments decisions regarding future legislation aimed at capping or reducing certain fees historically charged by banks.
Non-Interest Expense
Non-interest expenses consist primarily of employee costs, occupancy expenses, professional fees and other operating expenses. Non-interest expense for the nine months ended September 30, 2013 was $7,520, compared to $6,672 for the same period in 2012, an increase of $848, or 12.7%. The most significant changes noted when comparing the first nine months of 2013 to the first nine months of 2012 were: (1) an increase of $750, or 21.0%, in employee salaries and benefits, due in large part to commissions paid related to increased mortgage loan sales volumes that MidSouth has experienced so far in 2013; and (2) an increase in directors fees of $99 due to the reinstatement of fees in January 2013.
Non-interest expense for the three months ended September 30, 2013 was $2,506, compared to $2,380 for the same period in 2012, an increase of $126, or 5.3%. That variance was primarily attributed to an increase of $120, or 9.3%, in employee salaries and benefits related to increased mortgage commissions paid.
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Income Taxes
MidSouth will record no income tax expense for 2013 due to MidSouths cumulative losses from the previous years of operation.
Financial Condition
Balance Sheet Summary
MidSouths total assets were $261,029 at September 30, 2013 and $252,299 at December 31, 2012. Loans, net of allowance for loan losses, totaled $152,121 at September 30, 2013 and $137,790 at December 31, 2012. Investment securities totaled $73,086 at September 30, 2013 and $69,925 at December 31, 2012. Restricted equity securities totaled $1,540 and $1,550 at September 30, 2013 and December 31, 2012, respectively. Interest-bearing accounts at other financial institutions totaled $15,199 and $25,764 at September 30, 2013 and December 31, 2012, respectively. Certificates of deposit at other financial institutions totaled $1,732 and $1,482 at September 30, 2013 and December 31, 2012. The percentage changes for these categories are a 3.5% increase in total assets, a 10.4% increase in loans, net of allowance for loan losses, a 4.5% increase in investment securities, and a 0.6% decrease in restricted equity securities. The 41.0% decrease in interest-bearing accounts at other financial institutions is directly related to the increase in investment securities since the funds in the interest-bearing accounts was used to purchase investment securities to enhance MidSouths interest income and interest margin.
Total liabilities increased by 4.2% to $233,036 at September 30, 2013 from $223,631 at December 31, 2012. Stockholders equity decreased 2.4% to $27,993 at September 30, 2013 from $28,668 at December 31, 2012 primarily due to the change in net unrealized losses on available-for-sale securities. A more detailed discussion of assets, liabilities and capital follows.
Loans
Loans are a large component of MidSouths assets and are a primary source of income. The loan portfolio is composed of six primary loan categories: commercial, financial and agricultural; commercial real estate; residential real estate; construction and land development; multifamily real estate; and consumer and other loans. The table below sets forth the loan categories and the relative percentages of these loan categories in the portfolio at September 30, 2013 and December 31, 2012.
Loan categories are as follows:
September 30, 2013 | December 31, 2012 | |||||||||||||||
Amount | Percentage | Amount | Percentage | |||||||||||||
(In Thousands) | (In Thousands) | |||||||||||||||
Commercial, financial and agricultural |
$ | 18,447 | 11.9 | % | $ | 16,689 | 11.8 | % | ||||||||
Real estate: |
||||||||||||||||
Commercial |
72,797 | 47.0 | 61,322 | 43.5 | ||||||||||||
Residential |
41,714 | 26.9 | 40,567 | 28.8 | ||||||||||||
Construction and land development |
19,515 | 12.6 | 16,571 | 11.8 | ||||||||||||
Multifamily |
1,058 | 0.7 | 1,088 | 0.8 | ||||||||||||
Consumer and other |
1,450 | 0.9 | 4,641 | 3.3 | ||||||||||||
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|
|
|||||||||
Total |
$ | 154,981 | 100.0 | % | $ | 140,878 | 100.0 | % | ||||||||
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As represented in the table, gross loans increased by approximately 10.0% during the first nine months of 2013. MidSouth experienced growth in commercial loans and real estate loans, with increases in commercial real estate loans (18.7%), construction and land development loans (17.8%), residential real estate loans (2.8%) and commercial, financial and agricultural loans (10.5%). MidSouth experienced a decrease of 68.8% in consumer and other loans.
At September 30, 2013, real estate loans accounted for 87.2% of total loans. Accordingly, MidSouth has a significant concentration of credit that is dependent on the continuing strength of the local real estate market. Management is focused on making loans in an orderly fashion to maintain quality, especially considering the economic impact of the recession several years ago.
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The Federal regulatory agencies issued two guidances that have a significant impact on real-estate related lending and, thus, on the operations of MidSouth. One part of the guidance could require lenders to restrict lending secured primarily by certain categories of commercial real estate to a level of 300% of their capital or to raise additional capital. This factor, combined with the current economic environment, has affected MidSouths loan strategy away from, or to limit its expansion of, commercial real estate lending, which has been a material part of MidSouths lending strategy. This could also have a negative impact on MidSouths lending and profitability. Management actively monitors the composition of MidSouths loan portfolio, focusing on concentrations of credit, and the results of that monitoring activity is periodically reported to the Board of Directors.
The other guidance relates to the structuring of certain types of mortgages that allows negative amortization of consumer mortgage loans. Although MidSouth does not engage at present in a significant amount of lending using these types of instruments, the guidance could have the effect of making MidSouth less competitive in consumer mortgage lending if the local market is driving the demand for such an offering.
MidSouth follows the provisions of ASC 310-10 and ASC 310-40. These standards apply to impaired loans except for large groups of smaller-balance homogeneous loans that are collectively evaluated for impairment including residential mortgage and consumer installment loans.
A loan is impaired when it is probable that MidSouth will be unable to collect the scheduled payments of principal and interest due under the contractual terms of the loan agreement. Impaired loans are measured at the present value of expected future cash flows discounted at the loans effective interest rate, at the loans observable market price, or the fair value of the collateral if the loan is collateral dependent. If the measure of the impaired loan is less than the recorded investment in the loan, MidSouth shall recognize an impairment by creating a valuation allowance with a corresponding charge to the provision for loan losses or by adjusting an existing valuation allowance for the impaired loan with a corresponding charge or credit to the provision for loan losses.
MidSouths single family residential and consumer loans which total approximately $41,714 and $1,308, respectively at September 30, 2013, are divided into various groups of smaller-balance homogeneous loans that are collectively evaluated for impairment. Substantially all other loans of MidSouth are evaluated for specific impairment. If single-family residential loans are part of larger relationship that is considered impaired by management, then a specific reserve may be assigned to affected single-family residential loans in those relationships.
MidSouth considers all loans subject to the provisions of ASC 310-10 and ASC 310-40 that are on nonaccrual status to be impaired. Loans are placed on nonaccrual status when doubt as to timely collection of principal or interest exists, or when principal or interest is past due 90 days or more unless such loans are well-secured and in the process of collection. Delays or shortfalls in loan payments are evaluated with various other factors to determine if a loan is impaired. Generally, delinquencies under 90 days are considered insignificant unless certain other factors are present which indicate impairment is probable. The decision to place a loan on nonaccrual status is also based on an evaluation of the borrowers financial condition, collateral, liquidation value, and other factors that affect the borrowers ability to pay.
Generally, at the time a loan is placed on nonaccrual status, all interest accrued and uncollected on the loan in the current fiscal year is reversed from income, and all interest accrued and uncollected from the prior year is charged off against the allowance for loan losses. Thereafter, interest on nonaccrual loans is recognized as interest income only to the extent that cash is received and future collection of principal is not in doubt. If the collectability of outstanding principal is doubtful, such interest received is applied as a reduction of principal. A nonaccrual loan may be restored to accruing status when principal and interest is no longer past due and unpaid and future collection of principal and interest on a timely basis is not in doubt. At September 30, 2013 there were 25 non-accrual loans totaling $3,937, and there were 27 non-accrual loans totaling $5,673 at December 31, 2012.
Other loans may be classified as impaired when the current net worth and financial capacity of the borrower or the collateral pledged, if any, is viewed as inadequate. In those cases, such loans have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt, and if such deficiencies are not corrected, there is a probability that MidSouth will sustain some loss. In such cases, interest income continues to accrue as long as the loan does not meet MidSouths criteria for nonaccrual status.
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Generally MidSouth also classifies as impaired any loans the terms of which have been modified in a troubled debt restructuring. Interest is accrued on such loans that continue to meet the modified terms of their loan agreements. At September 30, 2013, MidSouth had 23 loans that have had their terms modified in a troubled debt restructuring, and at December 31, 2012, MidSouth had 15 such loans. Troubled debt restructurings are discussed in more detail later in this document.
MidSouths charge-off policy for impaired loans is similar to its charge-off policy for all loans in that loans are charged-off in the month when they are considered uncollectible.
Impaired loans and related allowance for loan loss allocation amounts at September 30, 2013 were as follows:
(In Thousands) |
Principal
Balance |
Recorded
Investment |
Allocated
Allowance for Loan Losses |
Average
Recorded Investment |
Interest
Income Recognized |
|||||||||||||||
Impaired Loans With No Allowance Recorded |
||||||||||||||||||||
Commercial, financial and agricultural |
$ | 1,253 | $ | 1,253 | $ | | $ | 1,311 | $ | 6 | ||||||||||
Real estate commercial |
948 | 950 | | 1,009 | 23 | |||||||||||||||
Real estate residential: |
||||||||||||||||||||
Open ended |
| | | | | |||||||||||||||
Closed ended |
737 | 738 | | 1,030 | 20 | |||||||||||||||
Construction and land development |
850 | 850 | | 474 | 1 | |||||||||||||||
Real estate multifamily |
| | | | | |||||||||||||||
Consumer and other |
| | | | | |||||||||||||||
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Total |
$ | 3,788 | $ | 3,791 | $ | | $ | 3,824 | $ | 50 | ||||||||||
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|
(In Thousands) |
Principal
Balance |
Recorded
Investment |
Allocated
Allowance for Loan Losses |
Average
Recorded Investment |
Interest
Income Recognized |
|||||||||||||||
Impaired Loans With An Allowance Recorded |
||||||||||||||||||||
Commercial, financial and agricultural |
$ | 359 | $ | 359 | $ | 278 | $ | 568 | $ | 1 | ||||||||||
Real estate commercial |
652 | 652 | 81 | 1,158 | | |||||||||||||||
Real estate residential: |
||||||||||||||||||||
Open ended |
138 | 139 | 7 | 139 | 5 | |||||||||||||||
Closed ended |
420 | 424 | 73 | 626 | 22 | |||||||||||||||
Construction and land development |
347 | 347 | 29 | 1,028 | 5 | |||||||||||||||
Real estate multifamily |
| | | | | |||||||||||||||
Consumer and other |
| | | | | |||||||||||||||
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Total |
$ | 1,916 | $ | 1,921 | $ | 468 | $ | 3,519 | $ | 33 | ||||||||||
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|
|
|
200
Impaired loans and related allowance for loan loss allocation amounts at December 31, 2012 were as follows:
Impaired Loans With Allowance |
Impaired Loans
With No Allowance |
|||||||||||||||||||
(In Thousands) |
Principal
Balance |
Recorded
Investment |
Allocated
Allowance for Loan Losses |
Principal
Balance |
Recorded
Investment |
|||||||||||||||
Commercial, financial and agricultural |
$ | 1,220 | $ | 1,220 | $ | 321 | $ | 817 | $ | 817 | ||||||||||
Real estate commercial |
1,259 | 1,259 | 263 | 1,065 | 1,067 | |||||||||||||||
Real estate residential: |
||||||||||||||||||||
Open ended |
138 | 139 | 15 | | | |||||||||||||||
Closed ended |
926 | 931 | 171 | 903 | 905 | |||||||||||||||
Construction and land development |
1,395 | 1,395 | 163 | | | |||||||||||||||
Real estate multifamily |
| | | | | |||||||||||||||
Consumer and other |
| | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 4,938 | $ | 4,944 | $ | 933 | $ | 2,785 | $ | 2,789 | ||||||||||
|
|
|
|
|
|
|
|
|
|
The average recorded investment in impaired loans for September 30, 2013 and December 31, 2012 was $7,343 and $10,396, respectively. The related total amount of interest income recognized for the period that such loans were impaired was $83 for the first nine months of 2013, which compares with $124 for the same period in 2012. MidSouths level of impaired loans decreased over the nine months, going from $7,723 at December 31, 2012, to $5,704 at September 30, 2013 as a result of collection efforts. The lingering effects of the recent economic recession have continued to impact a number of business customers and commercial real estate owners in addition to the borrowers in the real estate construction industry. Bank management believes that existing loan loss reserves are adequate to absorb potential losses that may occur in these segments of the portfolio.
At September 30, 2013 and December 31, 2012, there were $13,005 and $18,509, respectively, in loans included in MidSouths internal watch list. Loans are identified for inclusion on the watch list when information obtained about changes or uncertainties that may affect a borrowers financial condition have prompted management to more closely monitor the ability of the borrower to comply with the agreed upon repayment terms of the loan agreement. The resulting loan classifications could represent trends or uncertainties which management expects may impact future operating results, liquidity or capital resources.
The allowance for loan losses is discussed under Provision for Loan Losses. MidSouth maintains its allowance for loan losses at an amount considered by management to be adequate to provide for the possibility of loan losses in the loan portfolio.
Essentially all of MidSouths loans originate from Rutherford County and adjacent counties in Tennessee. MidSouth seeks to exercise prudent risk management in lending, including diversification by loan category and industry segment, as well as by identification of credit risks. Management is also sensitive, despite this diversification by loan category and industry segment, to the risks associated with MidSouths geographic loan concentration in Rutherford County and Middle Tennessee.
MidSouth has targeted commercial business lending, commercial and residential real estate lending and consumer lending. MidSouth seeks to build a loan portfolio which is capable of adjusting to swings in the interest rate market, and it is MidSouths policy to maintain a diverse loan portfolio not dependent on any particular market or industry segment. Management has set a goal for loans to approximate 85% to 90% of deposits. At September 30, 2013 MidSouths loan-to-deposit ratio is 65.7%, which indicates that MidSouth has a very strong liquidity position as of that date.
201
Credit Quality Indicators
MidSouth categorizes loans into risk categories based on relevant information about the ability of borrowers to service their debt such as: current financial information, historical payment experience, credit documentation, public information, and current economic trends, among other factors. MidSouth analyzes loans individually by classifying the loans as to credit risk. Loans classified as substandard or pass/watch (also known as special mention) are reviewed regularly by MidSouth to determine if appropriately classified or to determine if the loan is impaired. MidSouths loan portfolio is reviewed for credit quality on a regular basis, with samples being selected based on loan size, credit grades, etc., to assist MidSouths management in its efforts to properly apply credit risk management processes.
Loans excluded from the scope of the annual review process are generally classified as pass credits until: (a) they become past due; (b) management becomes aware of deterioration in the credit worthiness of the borrower; or (c) the customer contacts MidSouth for a modification. In these circumstances, the customer relationship is specifically evaluated for potential classification as to pass/watch, substandard or doubtful, or could even be considered for charge-off. MidSouth uses the following definitions for risk ratings:
| Pass/Watch (also known as Special Mention) Loans included in this category are currently protected (by collateral or otherwise) but are potentially weak. These loans constitute an undue and unwarranted credit risk but do not presently expose MidSouth to a sufficient degree of risk to warrant adverse classification. Close management attention is required. New loans should not be made which will immediately be identified in this category. As a general rule, for the purposes of calculating a loan loss reserve, loans in this category will have the historical loss reserve percentage applied and will remain in a pool with loans that are considered acceptable or better when determining the general valuation reserve. Loans classified as pass/watch have potential weaknesses that, if left uncorrected, may result in deterioration of the repayment prospects for the loan or of MidSouths credit position at some future date. |
| Substandard Substandard loans are inadequately protected by the current net worth and financial capacity of the borrower or of the collateral pledged, if any. Loans so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that MidSouth will sustain some loss if the deficiencies are not corrected. Loss potential, while existing in the aggregate amount of substandard assets, does not have to exist in individual assets classified as substandard. Loans in this category are evaluated individually as outlined in MidSouths loan policy when determining the general valuation reserve. |
| Doubtful Loans classified as doubtful have all the weaknesses inherent in those classified as substandard, with the added characteristic that the weaknesses make collection or liquidation in full highly questionable or improbable, based on currently existing facts, conditions, and values. |
The following table breaks down MidSouths credit quality indicators by type of loan as of September 30, 2013:
Credit Exposure
Credit Risk Profile by Internally Assigned Grade
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Grade |
||||||||||||||||||||||||||||
Pass |
$ | 12,936 | $ | 69,534 | $ | 39,314 | $ | 18,240 | $ | 528 | $ | 1,424 | $ | 141,976 | ||||||||||||||
Pass/Watch |
3,899 | 1,663 | 838 | 78 | 530 | 26 | 7,034 | |||||||||||||||||||||
Substandard |
1,484 | 1,600 | 1,523 | 1,197 | | | 5,804 | |||||||||||||||||||||
Doubtful |
128 | | 39 | | | | 167 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 18,447 | $ | 72,797 | $ | 41,714 | $ | 19,515 | $ | 1,058 | $ | 1,450 | $ | 154,981 | ||||||||||||||
|
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|
|
|
|
|
|
|
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|
|
|
202
The following table breaks down MidSouths credit quality indicators by type of loan as of December 31, 2012:
Credit Exposure
Credit Risk Profile by Internally Assigned Grade
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Grade |
||||||||||||||||||||||||||||
Pass |
$ | 10,519 | $ | 58,050 | $ | 36,343 | $ | 12,312 | $ | 545 | $ | 4,600 | $ | 122,369 | ||||||||||||||
Pass/Watch |
4,133 | 734 | 1,300 | 2,864 | 543 | 35 | 9,609 | |||||||||||||||||||||
Substandard |
2,037 | 2,538 | 2,878 | 1,395 | | 6 | 8,854 | |||||||||||||||||||||
Doubtful |
| | 46 | | | | 46 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 16,689 | $ | 61,322 | $ | 40,567 | $ | 16,571 | $ | 1,088 | $ | 4,641 | $ | 140,878 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table provides an aging analysis of MidSouths past due loans as of September 30, 2013:
Recorded | ||||||||||||||||||||||||||||
Greater | Investment | |||||||||||||||||||||||||||
30-59 | 60-89 | than 90 | Total | Total | Past Due | |||||||||||||||||||||||
Days | Days | Days or | Past Due | Current | Total | >90 Days and | ||||||||||||||||||||||
(In Thousands) |
Past Due | Past Due | Nonaccrual | Loans | Loans | Loans | Still Accruing | |||||||||||||||||||||
Commercial, financial and agricultural |
$ | | $ | | $ | 1,476 | $ | 1,476 | $ | 16,971 | $ | 18,447 | $ | | ||||||||||||||
Real estate: |
||||||||||||||||||||||||||||
Commercial |
| | 1,110 | 1,110 | 71,687 | 72,797 | | |||||||||||||||||||||
Residential |
| | 604 | 604 | 41,110 | 41,714 | | |||||||||||||||||||||
Construction and land development |
| | 747 | 747 | 18,768 | 19,515 | | |||||||||||||||||||||
Multifamily |
| | | | 1,058 | 1,058 | | |||||||||||||||||||||
Consumer and other |
| | | | 1,450 | 1,450 | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | | $ | | $ | 3,937 | $ | 3,937 | $ | 151,044 | $ | 154,981 | $ | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table provides an aging analysis of MidSouths past due loans as of December 31, 2012:
Recorded | ||||||||||||||||||||||||||||
Greater | Investment | |||||||||||||||||||||||||||
30-59 | 60-89 | than 90 | Total | Total | Past Due | |||||||||||||||||||||||
Days | Days | Days or | Past Due | Current | Total | >90 Days and | ||||||||||||||||||||||
(In Thousands) |
Past Due | Past Due | Nonaccrual | Loans | Loans | Loans | Still Accruing | |||||||||||||||||||||
Commercial, financial and agricultural |
$ | | $ | | $ | 1,746 | $ | 1,746 | $ | 14,943 | $ | 16,689 | $ | | ||||||||||||||
Real estate: |
||||||||||||||||||||||||||||
Commercial |
| | 1,820 | 1,820 | 59,502 | 61,322 | | |||||||||||||||||||||
Residential |
258 | | 705 | 963 | 39,604 | 40,567 | | |||||||||||||||||||||
Construction and land development |
228 | | 1,396 | 1,624 | 14,947 | 16,571 | | |||||||||||||||||||||
Multifamily |
| | | | 1,088 | 1,088 | | |||||||||||||||||||||
Consumer and other |
2 | | 6 | 8 | 4,633 | 4,641 | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 488 | $ | | $ | 5,673 | $ | 6,161 | $ | 134,717 | $ | 140,878 | $ | | ||||||||||||||
|
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203
Troubled Debt Restructurings
MidSouths loan portfolio includes certain loans that have been modified in a troubled debt restructuring (TDR), where economic concessions have been granted to borrowers who have experienced or are expected to experience financial difficulties. These concessions typically result from MidSouths loss mitigation activities and could include reductions in the interest rate, payment extensions, forgiveness of principal, forbearance or other actions. Certain TDRs are classified as nonperforming at the time of restructure and may only be returned to performing status after considering the borrowers sustained repayment performance for a reasonable period, generally six months.
Some loan modifications classified as TDRs may not ultimately result in the full collection of principal and interest, as modified, and result in potential incremental losses. These potential incremental losses have been factored into our overall allowance for loan losses estimate. The level of any re-defaults will likely be affected by future economic conditions. Once a loan becomes a TDR, it will continue to be reported as a TDR until it is repaid in full, reclassified to loans held for sale, foreclosed, charged off, sold, or it meets both of the following criteria to be removed from TDR status: (1) the restructuring agreement specifies an interest rate equal to or greater than the rate that the borrower was willing to accept at the time of the restructuring for a new loan with comparable risk; and (2) the loan is not impaired based on the terms specified by the restructuring agreement. During the nine months ended September 30, 2013, there were 15 loans added to MidSouths list of TDRs. There were 11 loans that were removed due to being paid off or charged off and three loans that were removed due to being sold.
The following table provides a summary of TDRs by performing status:
September 30, 2013 | December 31, 2012 | |||||||||||||||||||||||
(In Thousands) |
Accrual | Nonaccrual | Total | Accrual | Nonaccrual | Total | ||||||||||||||||||
Commercial, financial and agricultural |
$ | 75 | $ | 694 | $ | 769 | $ | 69 | $ | 152 | $ | 221 | ||||||||||||
Real estate: |
||||||||||||||||||||||||
Commercial |
| 1,110 | 1,110 | | 1,820 | 1,820 | ||||||||||||||||||
Residential |
877 | 273 | 1,150 | 720 | 8 | 728 | ||||||||||||||||||
Construction and land development |
| | | | 1,227 | 1,227 | ||||||||||||||||||
Multifamily |
| | | | | | ||||||||||||||||||
Consumer and other |
| | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 952 | $ | 2,077 | $ | 3,029 | $ | 789 | $ | 3,207 | $ | 3,996 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The following table summarizes loans that were modified during the periods indicated:
For the nine months ended September 30, 2013 | For the year ended December 31, 2012 | |||||||||||||||||||||||
Troubled Debt Restructurings |
Number of
Loans |
Pre-
Modification Recorded Investment |
Post-
Modification Recorded Investment |
Number of
Loans |
Pre-
Modification Recorded Investment |
Post-
Modification Recorded Investment |
||||||||||||||||||
(in Thousands) | (in Thousands) | |||||||||||||||||||||||
Commercial, financial and agricultural |
5 | $ | 547 | $ | 547 | | $ | | $ | | ||||||||||||||
Real estate: |
||||||||||||||||||||||||
Commercial |
| | | | | | ||||||||||||||||||
Residential |
10 | 991 | 991 | 3 | 433 | 433 | ||||||||||||||||||
Construction and land development |
| | | | | |||||||||||||||||||
Multifamily |
| | | | | | ||||||||||||||||||
Consumer and other |
| | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
15 | $ | 1,538 | $ | 1,538 | 3 | $ | 433 | $ | 433 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
204
The following table summarizes loans modified as troubled debt restructurings within the periods shown for which there was a subsequent default:
For the nine months ended
September 30, 2013 |
For the year ended
December 31, 2012 |
|||||||||||||||
Troubled Debt Restructurings That Subsequently Defaulted |
Number of
Loans |
Recorded
Investment |
Number of
Loans |
Recorded
Investment |
||||||||||||
(In Thousands) | (In Thousands) | |||||||||||||||
Commercial, financial and agricultural |
| $ | | | $ | | ||||||||||
Real estate: |
||||||||||||||||
Commercial |
| | | | ||||||||||||
Residential |
2 | 169 | | | ||||||||||||
Construction and land development |
| | | |||||||||||||
Multifamily |
| | | | ||||||||||||
Consumer and other |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
2 | $ | 169 | | $ | | ||||||||||
|
|
|
|
|
|
|
|
A payment default is considered to be any payment made more than 30 days later than the payments scheduled due date.
Nonperforming Assets
The following table provides information with respect to MidSouths non-performing assets at September 30, 2013 and December 31, 2012:
(In Thousands) |
September 30,
2013 |
December 31,
2012 |
||||||
Loans on nonaccrual status |
$ | 3,937 | $ | 5,673 | ||||
Loans past due 90 days or more but not on nonaccrual status |
| | ||||||
Foreclosed assets |
800 | 800 | ||||||
|
|
|
|
|||||
Total non-performing assets |
$ | 4,737 | $ | 6,473 | ||||
|
|
|
|
Foreclosed Assets
The following table presents activity related to foreclosed assets for the periods shown:
(In Thousands) |
For the nine
months ended September 30, 2013 |
For the year
ended December 31, 2012 |
||||||
Balance at beginning of year |
$ | 800 | $ | 1,379 | ||||
Additions |
| 397 | ||||||
Dispositions |
| (576 | ) | |||||
Change in valuation allowance |
| (400 | ) | |||||
|
|
|
|
|||||
Balances at end of period |
$ | 800 | $ | 800 | ||||
|
|
|
|
205
The following table summarizes foreclosed asset expenses for the periods shown:
Three Months Ended
September 30, |
Nine Months Ended
September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
(In Thousands) | (In Thousands) | |||||||||||||||
Operating costs |
$ | 5 | $ | 11 | $ | 23 | $ | 40 | ||||||||
Net (gains) losses on sales of foreclosed assets |
(1 | ) | (3 | ) | (6 | ) | 11 | |||||||||
Additions to valuation allowance |
| 20 | | 20 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 4 | $ | 28 | $ | 17 | $ | 71 | ||||||||
|
|
|
|
|
|
|
|
Securities
Securities are a primary component of MidSouths earning assets. Securities totaled $73,086 at September 30, 2013. This represents a 4.5% increase from the December 31, 2012 total of $69,925. The increase in securities is due to the purchase of securities to increase MidSouths interest margin. Restricted equity securities totaled $1,540 and $1,550 at September 30, 2013 and December 31, 2012, respectively. The change in restricted equity securities is directly related to the periodic evaluation of MidSouths required Federal Reserve Bank stock position.
MidSouth applies the provisions of ASC 320, Investments Debt and Equity Securities . Under the provisions of the Statement, securities are classified in three categories and accounted for as follows:
| Debt securities that the enterprise has the positive intent and ability to hold to maturity are classified as held-to-maturity securities and reported at amortized costs. |
| Debt and equity securities that are bought and held principally for the purpose of selling them in the near term are classified as trading securities and reported at fair value, with unrealized gains and losses included in earnings. |
| Debt and equity securities not classified as either held-to-maturity securities or trading securities are classified as available-for-sale securities and reported at fair value, with unrealized gains and losses excluded from earnings and reported as a separate component of stockholders equity. |
MidSouth has classified all its securities as available-for-sale. The investment securities portfolio is the second largest component of MidSouths earning assets and represented 28.0% of total assets at September 30, 2013. MidSouth uses the investment securities portfolio to provide cash flow and to meet pledging requirements for deposits of public funds, securities sold under agreement to repurchase and secured Fed Funds lines of credit. The average yield on the investment securities portfolio for the first nine months of 2013 was 1.85%.
206
The following table shows MidSouths investments gross unrealized losses and fair value, aggregated by investment category and length of time that individual securities have been in continuous unrealized loss position, at September 30, 2013:
In Thousands, Except Number of Securities | ||||||||||||||||||||||||||||||||
Less than 12 Months | 12 Months or More | Total | ||||||||||||||||||||||||||||||
Number | Number | |||||||||||||||||||||||||||||||
of | Of | |||||||||||||||||||||||||||||||
Fair | Unrealized | Securities | Fair | Unrealized | Securities | Fair | Unrealized | |||||||||||||||||||||||||
Value | Losses | Included | Value | Losses | Included | Value | Losses | |||||||||||||||||||||||||
U.S. Treasury and other U.S. Government agencies and corporations |
$ | | $ | | | $ | | $ | | | $ | | $ | | ||||||||||||||||||
Mortgage-backed securities |
14,734 | 210 | 14 | 206 | 1 | 1 | 14,940 | 211 | ||||||||||||||||||||||||
Taxable municipal securities |
20,751 | 1,249 | 29 | 1,768 | 150 | 4 | 22,519 | 1,399 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total temporarily impaired securities |
$ | 35,485 | $ | 1,459 | 43 | $ | 1,974 | $ | 151 | 5 | $ | 37,459 | $ | 1,610 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table shows MidSouths investments gross unrealized losses and fair value, aggregated by investment category and length of time that individual securities have been in continuous unrealized loss position, at December 31, 2012:
In Thousands, Except Number of Securities | ||||||||||||||||||||||||||||||||
Less than 12 Months | 12 Months or More | Total | ||||||||||||||||||||||||||||||
Number | Number | |||||||||||||||||||||||||||||||
of | Of | |||||||||||||||||||||||||||||||
Fair | Unrealized | Securities | Fair | Unrealized | Securities | Fair | Unrealized | |||||||||||||||||||||||||
Value | Losses | Included | Value | Losses | Included | Value | Losses | |||||||||||||||||||||||||
U.S. Treasury and other U.S. Government agencies and corporations |
$ | 841 | $ | 1 | 1 | $ | | $ | | | $ | 841 | $ | 1 | ||||||||||||||||||
State and municipal securities |
6,435 | 76 | 10 | | | | 6,435 | 76 | ||||||||||||||||||||||||
Mortgage-backed securities |
2,840 | 49 | 2 | 455 | 1 | 1 | 3,295 | 50 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total temporarily impaired securities |
$ | 10,116 | $ | 126 | 13 | $ | 455 | $ | 1 | 1 | $ | 10,571 | $ | 127 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
These securities are considered high quality investments in line with normal industry investing practices. The unrealized losses are primarily the result of changes in the interest rate and sector environments. Consistent with the original classification as available-for-sale securities, MidSouth does not intend to sell any of the debt securities with unrealized losses and do not believe that it is more likely than not that we will be required to sell a security in an unrealized loss position prior to a recovery in its value. Accordingly, we have not recognized any other-than-temporary impairment in our consolidated statement of operations.
207
MidSouth may sell the above or other securities in the ordinary course of business in response to unexpected and significant changes in liquidity needs, unexpected and significant increases in interest rates and/or sector spreads that significantly extend the securitys holding period.
Deposits
Deposits are the principal source of funds for MidSouth. Total deposits were $231,444 and $221,752 at September 30, 2013 and December 31, 2012, respectively, an increase of 4.4%. The increase in deposits is attributable to an increase in personal checking accounts. There has also been a shift in the composition of MidSouths deposits where time deposit customers have migrated into money market accounts to earn more interest while maintaining their liquidity. This trend may continue as deposit interest rates continue to be very low.
Historically, MidSouth has targeted local consumers, professionals, local governments and commercial businesses as its central customers; therefore, deposit instruments in the form of demand deposits, savings accounts, money market demand accounts, certificates of deposit and individual retirement accounts are offered to customers. Management believes Rutherford County and the surrounding area is a stable economic market offering growth opportunities for MidSouth; however, MidSouth competes with several of the larger bank holding companies that have bank offices in this area, as well as other community banks; and therefore, no assurances of market growth can be given. Even though MidSouth is in a very competitive market, management currently believes that its market share will be expanded. Management firmly believes that its position as a locally-owned financial institution that offers personalized service will contribute significantly to deposit growth.
Non-interest-bearing deposits increased 15.4% from $38,901 at December 31, 2012 to $44,891 at September 30, 2013. Total interest-bearing deposits increased 2.0% from $182,851 at December 31, 2012 to $186,553 at September 30, 2013.
The table below sets forth the total balances of our deposits by type as of September 30, 2013 and December 31, 2012, and the percent change in balances over the intervening period:
September 30, | December 31, | |||||||||||
2013 | 2012 | % Change | ||||||||||
(In Thousands) | ||||||||||||
Noninterest-bearing accounts |
$ | 44,891 | $ | 38,901 | 15.4 | % | ||||||
NOW accounts |
36,344 | 35,747 | 1.7 | |||||||||
Money market accounts |
69,525 | 60,071 | 15.7 | |||||||||
Savings accounts |
2,708 | 2,487 | 8.9 | |||||||||
Certificates of deposit |
72,375 | 79,207 | (8.6 | ) | ||||||||
Individual retirement accounts |
5,601 | 5,339 | 4.9 | |||||||||
|
|
|
|
|
|
|||||||
Total deposits |
$ | 231,444 | $ | 221,752 | 4.4 | % | ||||||
|
|
|
|
|
|
Asset Liquidity and Management
MidSouths management seeks to maximize net interest income by managing MidSouths assets and liabilities within appropriate constraints on capital, liquidity and interest rate risk. Liquidity is the ability to maintain sufficient cash levels necessary to fund operations, meet the requirements of depositors and borrowers, and fund attractive investment opportunities. MidSouths primary source of liquidity is expected to be a stable core deposit base. In addition, short-term investments, loan payments and investment security maturities provide a secondary source. Higher levels of liquidity bear corresponding costs, measured in terms of lower yields on short-term more liquid earning assets and higher interest expense involved in extending liability maturities.
208
MidSouth maintains a formal asset and liability management process to quantify, monitor and control interest rate risk and to assist management in maintaining stability in the net interest margin under varying interest rate environments. MidSouth accomplishes this process through the development and implementation of lending, funding and pricing strategies designed to maximize net interest income under varying interest rate environments subject to specific liquidity and interest rate risk guidelines.
Analysis of rate sensitivity and rate gap analysis are the primary tools used to assess the direction and magnitude of changes in net interest income resulting from changes in interest rates. Included in the analysis are cash flows and maturities of financial instruments held for purposes other than trading, changes in market conditions, loan volumes and pricing and deposit volume and mix. These assumptions are inherently uncertain, and, as a result, net interest income cannot be precisely estimated nor can the impact of higher or lower interest rates on net interest income be precisely predicted. Actual results will differ due to timing, magnitude and frequency of interest rate changes and changes in market conditions and managements strategies, among other factors.
MidSouths securities portfolio consists of earning assets that provide interest income. Securities classified as available-for-sale include securities intended to be used as part of MidSouths asset/liability strategy and/or securities that may be sold in response to changes in interest rate, prepayment risk, the need or desire to increase capital and similar economic factors. Securities totaling $2,500 mature or will be subject to rate adjustments within the next 12 months.
A secondary source of liquidity is MidSouths loan portfolio. At September 30, 2013, loans of approximately $60,800 either will become due or will be subject to rate adjustments within 12 months from the respective date.
As for liabilities, certificates of deposit of $100,000 or greater of approximately $27,100 either will become due or will be subject to rate adjustments during the next 12 months. Management does not anticipate that there will be significant reductions from deposit accounts that allow withdrawals, such as negotiable order of withdrawal accounts, money market demand accounts, demand deposits and regular savings accounts in the future.
Capital Position and Dividends
At September 30, 2013 and December 31, 2012, total stockholders equity was $27,993 and $28,668 or 10.7% and 11.4%, respectively, of total assets. That is a decrease of $675, or 2.4%, since year-end, and that is primarily due to a $2,188 decrease in net unrealized gains (losses) in MidSouths available-for-sale securities. That decrease was offset by MidSouths earnings of $1,482, preferred stock warrant exercises of $22 and stock option compensation expense recognized of $9.
The decline in net unrealized gains (losses) in MidSouths available-for-sale securities is due to the increase in market rates that occurred during the second quarter of 2013. As market rates rise, the market values of securities decline, unless the securities have variable rate features, and most of MidSouths securities do not have variable rate features. Such a decline is reflected as a reduction in MidSouths total capital, but it does not impact MidSouths capital ratios. Unrealized gains or losses on available-for-sale securities are eliminated from the regulatory calculation of capital ratios to remove the market value volatility that is caused by changes in market rates.
209
The table below sets forth MidSouths capital ratios as of the periods indicated.
September 30,
2013 |
December 31,
2012 |
|||||||
Tier 1 Leverage |
11.10 | % | 11.22 | % | ||||
Regulatory Minimum |
4.00 | % | 4.00 | % | ||||
Well-capitalized Minimum |
5.00 | % | 5.00 | % | ||||
Tier 1 Risk-Based Capital |
14.95 | % | 16.51 | % | ||||
Regulatory Minimum |
4.00 | % | 4.00 | % | ||||
Well-capitalized Minimum |
6.00 | % | 6.00 | % | ||||
Total Risk-Based Capital |
16.20 | % | 17.76 | % | ||||
Regulatory Minimum |
8.00 | % | 8.00 | % | ||||
Well-capitalized Minimum |
10.00 | % | 10.00 | % |
MidSouths principal regulators have established minimum risk-based capital requirements and leverage capital requirements for MidSouth. These guidelines classify capital into two categories of Tier 1 and Total risk-based capital. Total risk-based capital consists of Tier 1 (or core) capital (essentially common equity less intangible assets) and Tier 2 capital (essentially qualifying long-term debt, of which MidSouth has none, and a part of the allowance for loan losses). In determining risk-based capital requirements, assets are assigned risk-weights of 0% to 100%, depending on regulatory assigned levels of credit risk associated with such assets.
MidSouth is considered well-capitalized based on its regulatory capital ratios. MidSouths capital ratios have been enhanced as capital has been raised through earnings, two preferred stock offerings and as a result of repositioning the balance sheet. As MidSouths assets increase, MidSouths capital ratios can be expected to decline, but not below the well-capitalized level established by the regulatory agencies. Loan growth and asset quality continue to be the main issues faced by MidSouth Bank and the banking industry as a whole.
There are statutory, regulatory and prudential limitations on the payment of dividends by MidSouth. Tennessee law restricts the amount of dividends that may be paid by MidSouth. In no event is a Tennessee-chartered bank permitted to pay dividends in any calendar year that exceed the total of its net income of that year combined with its retained net income of the preceding two years without the prior approval of the Commissioner of the TDFI. Prior regulatory approval must be obtained before declaring any dividends if the amount of MidSouths capital and surplus is below certain statutory limits. Dividends can also be restricted under federal law, and under state safety and soundness considerations, as a result of a declining or inadequate capital level. Future dividends may be paid at the discretion of the board of directors consistent with the regulatory, legal and prudential considerations discussed elsewhere in this document.
On July 2, 2013, the Board of Governors of the Federal Reserve System approved a final rule that substantially revises and replaces the regulatory agencies current capital rules to align with the Basel III capital standards and to meet certain requirements of the Dodd-Frank Act. Certain requirements of the new rules establish more restrictive capital definitions, higher risk-weightings for certain asset classes, capital buffers, and higher minimum capital ratios. MidSouth Bank becomes subject to the new rule on January 1, 2015.
Off Balance Sheet Arrangements
At September 30, 2013, MidSouth had unfunded loan commitments outstanding of approximately $52,900 and outstanding standby letters of credit of approximately $1,100. Because these commitments generally have fixed expiration dates and many will expire without being drawn upon, the total commitment level does not necessarily represent future cash requirements. If needed to fund these outstanding commitments, in addition to its available cash, MidSouth has the ability to liquidate securities available-for-sale or borrow funds from the Federal Home Loan Bank or purchase Federal funds from other financial institutions. Additionally, MidSouth could sell participations in these or other loans to correspondent banks. As mentioned above, MidSouth has been able to fund its ongoing liquidity needs through its stable core deposit base, loan payments, its investment security maturities and short-term borrowings.
210
Impact of Inflation
Although interest rates are significantly affected by inflation, the inflation rate is immaterial when reviewing MidSouths results of operations.
211
MIDSOUTH BANK
Yields on Average Earning Assets and Rates
on Average Interest-Bearing Liabilities
See the tables Average Balances Yields & Rates, and Analysis of Changes in Interest Income and Expenses below.
Average Balances (4) Yields & Rates
(dollars are in thousands)
Three Months Ended September 30, | ||||||||||||||||||||||||
2013 | 2012 | |||||||||||||||||||||||
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
|||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||
Loans (1) |
$ | 156,041 | $ | 2,118 | 5.39 | % | $ | 143,670 | $ | 2,032 | 5.61 | % | ||||||||||||
Securities available for sale |
71,107 | 349 | 1.96 | % | 77,623 | 396 | 2.04 | % | ||||||||||||||||
Securities held to maturity |
| | | | | | ||||||||||||||||||
Federal funds sold and other |
24,285 | 39 | 0.64 | % | 10,574 | 30 | 1.13 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 251,433 | $ | 2,506 | 3.96 | % | $ | 231,867 | $ | 2,458 | 4.21 | % | ||||||||||||
Allowance for loan losses |
(3,118 | ) | (3,267 | ) | ||||||||||||||||||||
All other assets |
12,373 | 13,231 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL ASSETS |
$ | 260,688 | $ | 241,831 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
LIABILITIES & STOCKHOLDERS EQUITY |
||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||
Interest checking |
$ | 35,889 | $ | 14 | 0.15 | % | $ | 29,936 | $ | 13 | 0.17 | % | ||||||||||||
Money market |
69,325 | 59 | 0.34 | % | 54,582 | 52 | 0.38 | % | ||||||||||||||||
Savings |
2,784 | 1 | 0.14 | % | 2,467 | 1 | 0.16 | % | ||||||||||||||||
Time deposits |
77,785 | 146 | 0.74 | % | 88,502 | 229 | 1.03 | % | ||||||||||||||||
Federal Home Loan Bank advances |
11 | | | 11 | | | ||||||||||||||||||
Other borrowed funds |
315 | | 0.00 | % | 1,524 | 2 | 0.52 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 186,109 | $ | 220 | 0.47 | % | $ | 177,022 | $ | 297 | 0.67 | % | ||||||||||||
Demand deposits |
44,737 | 35,287 | ||||||||||||||||||||||
Other liabilities |
2,098 | 1,576 | ||||||||||||||||||||||
Total stockholders equity |
27,744 | 27,946 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL LIABILITIES AND STOCKHOLDERS EQUITY |
$ | 260,688 | $ | 241,831 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
NET INTEREST SPREAD (2) |
3.49 | % | 3.54 | % | ||||||||||||||||||||
NET INTEREST INCOME |
$ | 2,286 | $ | 2,161 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
NET INTEREST MARGIN (3) |
3.61 | % | 3.70 | % |
(1) | Loan balances are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(3) | Represents net interest income (annualized) divided by total average earning assets. |
(4) | Averages balances are average daily balances. |
212
Average Balances (4) Yields & Rates
(dollars are in thousands)
Nine Months Ended September 30, | ||||||||||||||||||||||||
2013 | 2012 | |||||||||||||||||||||||
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/Rate |
|||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||
Loans (1) |
$ | 153,677 | $ | 6,153 | 5.35 | % | $ | 142,221 | $ | 5,972 | 5.61 | % | ||||||||||||
Securities available for sale |
71,430 | 986 | 1.84 | % | 71,008 | 1,125 | 2.11 | % | ||||||||||||||||
Securities held to maturity |
| | | | | | ||||||||||||||||||
Federal funds sold and other |
20,483 | 108 | 0.70 | % | 14,219 | 89 | 0.84 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 245,590 | $ | 7,247 | 3.94 | % | $ | 227,448 | $ | 7,186 | 4.22 | % | ||||||||||||
Allowance for loan losses |
(3,144 | ) | (3,238 | ) | ||||||||||||||||||||
All other assets |
12,597 | 13,213 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL ASSETS |
$ | 255,043 | $ | 237,423 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
LIABILITIES & STOCKHOLDERS EQUITY |
||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||
Interest checking |
$ | 35,340 | $ | 45 | 0.17 | % | $ | 28,806 | $ | 46 | 0.21 | % | ||||||||||||
Money market |
64,638 | 167 | 0.35 | % | 52,487 | 167 | 0.43 | % | ||||||||||||||||
Savings |
2,796 | 1 | 0.05 | % | 2,455 | 1 | 0.05 | % | ||||||||||||||||
Time deposits |
80,040 | 483 | 0.81 | % | 89,196 | 735 | 1.10 | % | ||||||||||||||||
Federal Home Loan Bank advances |
11 | | | 11 | | | ||||||||||||||||||
Other borrowed funds |
573 | 1 | 0.23 | % | 2,277 | 6 | 0.35 | % | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 183,398 | $ | 697 | 0.51 | % | $ | 175,232 | $ | 955 | 0.73 | % | ||||||||||||
Demand deposits |
41,588 | 33,477 | ||||||||||||||||||||||
Other liabilities |
1,420 | 1,303 | ||||||||||||||||||||||
Total stockholders equity |
28,637 | 27,411 | ||||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
TOTAL LIABILITIES AND STOCKHOLDERS EQUITY |
$ | 255,043 | $ | 237,423 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
NET INTEREST SPREAD (2) |
3.43 | % | 3.49 | % | ||||||||||||||||||||
NET INTEREST INCOME |
$ | 6,550 | $ | 6,231 | ||||||||||||||||||||
|
|
|
|
|||||||||||||||||||||
NET INTEREST MARGIN (3) |
3.57 | % | 3.66 | % |
(1) | Loan balances are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(3) | Represents net interest income (annualized) divided by total average earning assets. |
(4) | Averages balances are average daily balances. |
213
Average Balances (4) Yields & Rates
Years Ended December 31, | ||||||||||||||||||||||||||||||||||||
2012 | 2011 | 2010 | ||||||||||||||||||||||||||||||||||
Average
Balance |
Interest
Inc / Exp |
Average
Yield/ Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/ Rate |
Average
Balance |
Interest
Inc / Exp |
Average
Yield/ Rate |
||||||||||||||||||||||||||||
ASSETS: |
||||||||||||||||||||||||||||||||||||
Loans (1) |
$ | 143,242 | $ | 7,992 | 5.58 | % | $ | 146,149 | $ | 8,518 | 5.83 | % | $ | 178,634 | $ | 10,159 | 5.69 | % | ||||||||||||||||||
Securities available for sale |
71,424 | 1,462 | 2.05 | % | 56,262 | 1,456 | 2.59 | % | 41,607 | 1,177 | 2.83 | % | ||||||||||||||||||||||||
Securities held to maturity |
| | | | | | | | | |||||||||||||||||||||||||||
Federal funds sold and other |
14,631 | 120 | 0.82 | % | 16,598 | 107 | 0.64 | % | 13,863 | 97 | 0.70 | % | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
TOTAL INTEREST-EARNING ASSETS |
$ | 229,297 | $ | 9,574 | 4.18 | % | $ | 219,009 | $ | 10,081 | 4.60 | % | $ | 234,104 | $ | 11,433 | 4.88 | % | ||||||||||||||||||
Allowance for loan losses |
(3,289 | ) | (4,156 | ) | (6,576 | ) | ||||||||||||||||||||||||||||||
All other assets |
13,243 | 13,804 | 15,676 | |||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
TOTAL ASSETS |
$ | 239,251 | $ | 228,657 | $ | 243,204 | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
LIABILITIES & STOCKHOLDERS EQUITY |
||||||||||||||||||||||||||||||||||||
Deposits: |
||||||||||||||||||||||||||||||||||||
Interest checking |
$ | 29,463 | $ | 62 | 0.21 | % | $ | 26,052 | $ | 65 | 0.25 | % | $ | 27,686 | $ | 92 | 0.33 | % | ||||||||||||||||||
Money market |
53,769 | 220 | 0.41 | % | 46,595 | 235 | 0.50 | % | 40,499 | 294 | 0.73 | % | ||||||||||||||||||||||||
Savings |
2,462 | 3 | 0.12 | % | 2,162 | 2 | 0.09 | % | 2,064 | 2 | 0.10 | % | ||||||||||||||||||||||||
Time deposits |
88,401 | 939 | 1.06 | % | 93,812 | 1,304 | 1.39 | % | 115,665 | 2,258 | 1.95 | % | ||||||||||||||||||||||||
Federal Home Loan Bank advances |
44 | | 0.00 | % | 482 | 17 | 3.53 | % | 1,168 | 53 | 4.54 | % | ||||||||||||||||||||||||
Other borrowed funds |
2,013 | 7 | 0.35 | % | 4,188 | 17 | 0.41 | % | 2,523 | 13 | 0.52 | % | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||
TOTAL INTEREST-BEARING LIABILITIES |
$ | 176,152 | $ | 1,231 | 0.70 | % | $ | 173,291 | $ | 1,640 | 0.95 | % | $ | 189,605 | $ | 2,712 | 1.43 | % | ||||||||||||||||||
Demand deposits |
34,245 | 28,249 | 28,632 | |||||||||||||||||||||||||||||||||
Other liabilities |
1,237 | 1,711 | 2,143 | |||||||||||||||||||||||||||||||||
Total stockholders equity |
27,617 | 25,406 | 22,824 | |||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
TOTAL LIABILITIES AND STOCKHOLDERS EQUITY |
$ | 239,251 | $ | 228,657 | $ | 243,204 | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
NET INTEREST SPREAD (2) |
3.48 | % | 3.65 | % | 3.45 | % | ||||||||||||||||||||||||||||||
NET INTEREST INCOME |
$ | 8,343 | $ | 8,441 | $ | 8,721 | ||||||||||||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||||||||||||
NET INTEREST MARGIN (3) |
3.64 | % | 3.85 | % | 3.73 | % |
(1) | Loan balances are net of deferred origination fees and costs. Non-accrual loans are included in total loan balances. |
(2) | Represents the average rate earned on interest-earning assets minus the average rate paid on interest-bearing liabilities. |
(3) | Represents net interest income (annualized) divided by total average earning assets. |
(4) | Averages balances are average daily balances. |
Non-accrual loans : A loan is moved to nonaccrual status in accordance with our companys policy typically after 90 days of non-payment, or less than 90 days of non-payment if we determine that the full timely collection of principal and interest becomes doubtful. Past due status is based on the contractual terms of the loan. In all cases, loans are placed on nonaccrual or charged-off at an earlier date if collection of principal or interest is considered
214
doubtful. All interest accrued but not received for loans placed on nonaccrual, is reversed against interest income. Interest received on such loans is accounted for on the cash-basis or cost-recovery method, until qualifying for return to accrual. Loans are returned to accrual status when all the principal and interest amounts contractually due are brought current and future payments are reasonably assured.
The tables below detail the components of the changes in net interest income for the periods indicated. For each major category of interest-earning assets and interest-bearing liabilities, information is provided with respect to changes due to average volume and changes due to rates, with the changes in both volumes and rates allocated to these two categories based on the proportionate absolute changes in each category.
Analysis of Changes in Interest Income and Expenses
Net change three month periods ended
Sep 30, 2013 versus Sep 30, 2012 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 175 | $ | (89 | ) | $ | 86 | |||||
Securities available for sale |
(33 | ) | (14 | ) | (47 | ) | ||||||
Securities held to maturity |
| | | |||||||||
Federal funds sold and other |
39 | (30 | ) | 9 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 181 | $ | (133 | ) | $ | 48 | |||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 3 | $ | (2 | ) | $ | 1 | |||||
Money market accounts |
14 | (7 | ) | 7 | ||||||||
Savings |
0 | (0 | ) | | ||||||||
Time deposits |
(28 | ) | (55 | ) | (83 | ) | ||||||
Federal Home Loan Bank advances |
| | | |||||||||
Other borrowed funds |
(2 | ) | (0 | ) | (2 | ) | ||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | (13 | ) | $ | (64 | ) | $ | (77 | ) | |||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 194 | $ | (69 | ) | $ | 125 | |||||
|
|
|
|
|
|
|||||||
Net change nine month periods ended
Sep 30, 2013 versus Sep 30, 2012 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | 481 | $ | (300 | ) | $ | 181 | |||||
Securities available for sale |
7 | (146 | ) | (139 | ) | |||||||
Securities held to maturity |
| | | |||||||||
Federal funds sold and other |
39 | (20 | ) | 19 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 527 | $ | (466 | ) | $ | 61 | |||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 10 | $ | (11 | ) | $ | (1 | ) | ||||
Money market accounts |
$ | 39 | $ | (39 | ) | | ||||||
Savings |
$ | 0 | $ | (0 | ) | | ||||||
Time deposits |
$ | (75 | ) | $ | (177 | ) | (252 | ) | ||||
Federal Home Loan Bank advances |
$ | | $ | | | |||||||
Other borrowed funds |
$ | (4 | ) | $ | (1 | ) | (5 | ) | ||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | (30 | ) | $ | (228 | ) | $ | (258 | ) | |||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 557 | $ | (238 | ) | $ | 319 | |||||
|
|
|
|
|
|
215
Net change years ended
December 31, 2012 versus December 31, 2011 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | (169 | ) | $ | (357 | ) | $ | (526 | ) | |||
Securities available for sale |
392 | (386 | ) | 6 | ||||||||
Securities held to maturity |
| | | |||||||||
Federal funds sold and other |
(13 | ) | 26 | 13 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | 210 | $ | (717 | ) | $ | (507 | ) | ||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | 9 | $ | (12 | ) | $ | (3 | ) | ||||
Money market accounts |
36 | (51 | ) | (15 | ) | |||||||
Savings |
0 | 1 | 1 | |||||||||
Time deposits |
(75 | ) | (290 | ) | (365 | ) | ||||||
Federal Home Loan Bank advances |
(15 | ) | (2 | ) | (17 | ) | ||||||
Other borrowed funds |
(9 | ) | (1 | ) | (10 | ) | ||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | (55 | ) | $ | (354 | ) | $ | (409 | ) | |||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | 265 | $ | (363 | ) | $ | (98 | ) | ||||
|
|
|
|
|
|
|||||||
Net change years ended
December 31, 2011 versus December 31, 2010 |
||||||||||||
Volume | Rate | Net Change | ||||||||||
INTEREST INCOME |
||||||||||||
Loans |
$ | (1,847 | ) | $ | 206 | $ | (1,641 | ) | ||||
Securities available for sale |
415 | (136 | ) | 279 | ||||||||
Securities held to maturity |
| | | |||||||||
Federal funds sold and other |
19 | (9 | ) | 10 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST INCOME |
$ | (1,413 | ) | $ | 61 | $ | (1,352 | ) | ||||
|
|
|
|
|
|
|||||||
INTEREST EXPENSE |
||||||||||||
Deposits |
||||||||||||
Interest checking |
$ | (5 | ) | $ | (22 | ) | $ | (27 | ) | |||
Money market accounts |
44 | (103 | ) | (59 | ) | |||||||
Savings |
0 | (0 | ) | 0 | ||||||||
Time deposits |
(427 | ) | (527 | ) | (954 | ) | ||||||
Federal Home Loan Bank advances |
(31 | ) | (5 | ) | (36 | ) | ||||||
Other borrowed funds |
9 | (5 | ) | 4 | ||||||||
|
|
|
|
|
|
|||||||
TOTAL INTEREST EXPENSE |
$ | (410 | ) | $ | (662 | ) | $ | (1,072 | ) | |||
|
|
|
|
|
|
|||||||
NET INTEREST INCOME |
$ | (1,003 | ) | $ | 723 | $ | (280 | ) | ||||
|
|
|
|
|
|
216
The validity of the shares of FFN common stock to be issued in connection with the merger will be passed upon for FFN by Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, Tennessee. The material U.S. federal income tax consequences of the merger will also be passed upon by Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Nashville, Tennessee.
The consolidated financial statements of Franklin Financial Network, Inc. as of December 31, 2012 and 2011, and for the years then ended, have been included herein in reliance upon the reports of Crowe Horwath LLP, independent registered public accounting firm, appearing elsewhere herein, and upon authority of said firm as experts in accounting and auditing.
The consolidated financial statements of MidSouth as of December 31, 2012 and 2011, and for the years then ended, have been included herein in reliance upon the reports of Maggart & Associates, P.C., independent registered public accounting firm, appearing elsewhere herein, and upon authority of said firm as experts in accounting and auditing.
217
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
(AUDITED AND UNAUDITED)
FRANKLIN FINANCIAL NETWORK, INC.
Audited Financial Statements as of and for the Years Ended December, 2012 and 2011
F-2 | ||||
Consolidated Financial Statements: |
||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-6 | ||||
F-7 | ||||
F-8 | ||||
Unaudited Financial Statements as of and for the Three Months and Nine Months Ended September 30, 2013 and September 30, 2012 |
||||
Consolidated Interim Financial Statements: |
||||
Consolidated Balance Sheets As of September 30, 2013 (Unaudited) and December 31, 2012 |
F-41 | |||
F-42 | ||||
F-43 | ||||
F-44 | ||||
F-45 | ||||
F-46 | ||||
MIDSOUTH BANK | ||||
Audited Financial Statements as of and for the Years Ended December 31, 2012 and 2011 |
||||
Management Report on Internal Control Over Financial Reporting |
F-69 | |||
F-70 |
218
Consolidated Financial Statements : |
||||
F-71 | ||||
F-72 | ||||
F-73 | ||||
F-74 | ||||
F-75 | ||||
F-78 | ||||
Unaudited Financial Statements as of and for the Three Months and Nine Months Ended September 30, 2013 and September 30, 2012 |
||||
Consolidated Interim Financial Statements : |
||||
Consolidated Balance Sheets As of September 30, 2013 (Unaudited) and December 31, 2012 |
F-118 | |||
F-119 | ||||
F-120 | ||||
F-121 | ||||
F-123 |
219
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
F-1
|
Crowe Horwath LLP Independent Member Crowe Horwath International |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors
Franklin Financial Network, Inc.
Franklin, Tennessee
We have audited the accompanying consolidated balance sheets of Franklin Financial Network, Inc. as of December 31, 2012 and 2011, and the related consolidated statements of income, comprehensive income, changes in shareholders equity, and cash flows for the years then ended. These financial statements are the responsibility of the Companys management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Companys internal control over financial reporting. Accordingly, we express no such opinion. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Franklin Financial Network, Inc. as of December 31, 2012 and 2011, and the results of its operations and its cash flows for the years then ended, in conformity with U.S. generally accepted accounting principles.
/s/ Crowe Horwath LLP
Brentwood, Tennessee
January 21, 2014
F-2
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED BALANCE SHEETS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
2012 | 2011 | |||||||
ASSETS |
||||||||
Cash and due from financial institutions |
$ | 24,977 | $ | 23,286 | ||||
Federal funds sold |
| 24 | ||||||
|
|
|
|
|||||
Cash and cash equivalents |
24,977 | 23,310 | ||||||
Interest-bearing deposits in financial institutions |
100 | 200 | ||||||
Securities available for sale |
186,118 | 186,673 | ||||||
Securities held to maturity (fair value 2012 - $34,517 and 2011 - $8,857) |
33,815 | 8,451 | ||||||
Loans held for sale |
15,355 | 5,565 | ||||||
Loans |
299,483 | 229,635 | ||||||
Allowance for loan losses |
(3,983 | ) | (3,413 | ) | ||||
|
|
|
|
|||||
Net loans |
295,500 | 226,222 | ||||||
|
|
|
|
|||||
Restricted equity securities, at cost |
2,258 | 1,902 | ||||||
Premises and equipment, net |
2,944 | 2,705 | ||||||
Accrued interest receivable |
1,778 | 1,539 | ||||||
Bank owned life insurance |
7,964 | 4,070 | ||||||
Foreclosed assets |
2,089 | 744 | ||||||
Servicing rights, net |
2,401 | 2,329 | ||||||
Mortgage banking derivative asset |
612 | 138 | ||||||
Prepaid FDIC assessments |
230 | 632 | ||||||
Goodwill |
157 | 157 | ||||||
Other assets |
1,464 | 486 | ||||||
|
|
|
|
|||||
Total assets |
$ | 577,762 | $ | 465,123 | ||||
|
|
|
|
|||||
LIABILITIES AND SHAREHOLDERS EQUITY |
||||||||
Deposits |
||||||||
Non-interest-bearing |
$ | 48,089 | $ | 31,093 | ||||
Interest-bearing |
466,554 | 374,513 | ||||||
|
|
|
|
|||||
Total deposits |
514,643 | 405,606 | ||||||
Federal funds purchased and repurchase agreements |
1,602 | 3,880 | ||||||
Federal Home Loan Bank advances |
8,000 | 6,500 | ||||||
Accrued interest payable |
308 | 366 | ||||||
Other liabilities |
1,853 | 1,392 | ||||||
|
|
|
|
|||||
Total liabilities |
526,406 | 417,744 | ||||||
Shareholders equity |
||||||||
Senior non-cumulative preferred stock, no par value, $10,000 liquidation value: |
||||||||
Series A, 1,000,000 shares authorized; 10,000 shares issued at December 31, 2012 |
10,000 | 10,000 | ||||||
Common stock, no par value; 10,000,000 shares authorized; 3,621,154 and 3,550,988 issued at December 31, 2012 and 2011, respectively |
36,792 | 35,963 | ||||||
Additional paid-in capital |
1,029 | 725 | ||||||
Retained earnings (accumulated deficit) |
2,606 | (1,076 | ) | |||||
Accumulated other comprehensive income |
929 | 1,767 | ||||||
|
|
|
|
|||||
Total shareholders equity |
51,356 | 47,379 | ||||||
|
|
|
|
|||||
Total liabilities and shareholders equity |
$ | 577,762 | $ | 465,123 | ||||
|
|
|
|
See accompanying notes to consolidated financial statements.
F-3
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF INCOME
Years ending December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
2012 | 2011 | |||||||
Interest income and dividends |
||||||||
Loans, including fees |
$ | 16,262 | $ | 12,001 | ||||
Securities |
||||||||
Taxable |
3,648 | 4,051 | ||||||
Tax-exempt |
40 | 4 | ||||||
Deposits in financial institutions |
| | ||||||
Federal funds sold and other |
54 | 36 | ||||||
|
|
|
|
|||||
20,004 | 16,092 | |||||||
Interest expense |
||||||||
Deposits |
3,917 | 3,865 | ||||||
Federal funds purchased and repurchase agreements |
43 | 33 | ||||||
Federal Home Loan Bank advances |
88 | 58 | ||||||
|
|
|
|
|||||
4,048 | 3,956 | |||||||
Net interest income |
15,956 | 12,136 | ||||||
Provision for loan losses |
1,548 | 680 | ||||||
|
|
|
|
|||||
Net interest income after provision for loan losses |
14,408 | 11,456 | ||||||
Noninterest income |
||||||||
Service charges on deposit accounts |
48 | 34 | ||||||
Other service charges and fees |
987 | 615 | ||||||
Net gains on sale of loans |
5,550 | 2,687 | ||||||
Loan servicing fees, net |
(736 | ) | (332 | ) | ||||
Gain on bank owned life insurance |
606 | | ||||||
Gain on sale of securities |
991 | 672 | ||||||
Other |
1,199 | 784 | ||||||
|
|
|
|
|||||
Total noninterest income |
8,645 | 4,460 | ||||||
Noninterest expense |
||||||||
Salaries and employee benefits |
11,020 | 8,436 | ||||||
Occupancy and equipment |
2,496 | 2,272 | ||||||
FDIC assessment expense |
441 | 588 | ||||||
Loss on sale and write down of foreclosed assets |
44 | 293 | ||||||
Marketing |
231 | 181 | ||||||
Professional fees |
380 | 225 | ||||||
Other |
2,245 | 1,656 | ||||||
|
|
|
|
|||||
Total noninterest expense |
16,857 | 13,651 | ||||||
|
|
|
|
|||||
Income before income tax expense |
6,196 | 2,265 | ||||||
Income tax expense |
2,056 | 111 | ||||||
|
|
|
|
|||||
Net income |
4,140 | 2,154 | ||||||
Dividends paid on Series A preferred stock |
(458 | ) | | |||||
|
|
|
|
|||||
Net income applicable to common shareholders |
$ | 3,682 | $ | 2,154 | ||||
|
|
|
|
|||||
Earnings per share: |
||||||||
Basic |
$ | 1.03 | $ | 0.61 | ||||
Diluted |
1.02 | 0.61 |
See accompanying notes to consolidated financial statements.
F-4
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
Years ending December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
2012 | 2011 | |||||||
Net income |
$ | 4,140 | $ | 2,154 | ||||
|
|
|
|
|||||
Other comprehensive income (loss), net of tax: |
||||||||
Unrealized gains/losses on securities: |
||||||||
Unrealized holding gain (loss) arising during the period |
(24 | ) | 2,643 | |||||
Reclassification adjustment for gains included in net income |
(991 | ) | (672 | ) | ||||
|
|
|
|
|||||
Net unrealized gains (losses) |
(1,015 | ) | 1,971 | |||||
Tax effect |
177 | (754 | ) | |||||
|
|
|
|
|||||
Total other comprehensive income (loss) |
(838 | ) | 1,217 | |||||
|
|
|
|
|||||
Comprehensive income |
$ | 3,302 | $ | 3,371 | ||||
|
|
|
|
See accompanying notes to consolidated financial statements.
F-5
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS EQUITY
Years ending December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
Preferred
Stock |
Common
Stock |
Retained
Additional Paid-In Capital |
Accumulated
Earnings (Accumulated Deficit) |
Other
Comprehensive Income (loss) |
Total
Shareholders Equity |
|||||||||||||||||||
Balance at January 1, 2011 |
$ | | $ | 35,812 | $ | 398 | $ | (3,230 | ) | $ | 550 | $ | 33,530 | |||||||||||
Issuance of common stock, 60 shares |
| 1 | | | | 1 | ||||||||||||||||||
Issuance of Series A preferred stock, net of stock offering costs of $6 |
10,000 | | (6 | ) | | | 9,994 | |||||||||||||||||
Stock issued in conjunction with 401(k) employer match, 15,027 shares |
| 150 | | | | 150 | ||||||||||||||||||
Stock based compensation expense |
| | 333 | | | 333 | ||||||||||||||||||
Net income |
| | | 2,154 | | 2,154 | ||||||||||||||||||
Other comprehensive income |
| | | | 1,217 | 1,217 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2011 |
10,000 | 35,963 | 725 | (1,076 | ) | 1,767 | 47,379 | |||||||||||||||||
Exercise of common stock warrants, 54,958 shares |
| 660 | | | | 660 | ||||||||||||||||||
Dividends paid on Series A preferred stock |
| | | (458 | ) | | (458 | ) | ||||||||||||||||
Stock issued in conjunction with 401(k) employer match, 15,188 shares |
| 169 | | | | 169 | ||||||||||||||||||
Stock based compensation expense |
| | 304 | | | 304 | ||||||||||||||||||
Net income |
| | | 4,140 | | 4,140 | ||||||||||||||||||
Other comprehensive loss |
| | | | (838 | ) | (838 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at December 31, 2012 |
$ | 10,000 | $ | 36,792 | $ | 1,029 | $ | 2,606 | $ | 929 | $ | 51,356 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-6
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ending December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
2012 | 2011 | |||||||
Cash flows from operating activities |
||||||||
Net income |
$ | 4,140 | $ | 2,154 | ||||
Adjustments to reconcile net income to net cash from operating activities |
||||||||
Depreciation and amortization on premises and equipment |
717 | 712 | ||||||
Net amortization of securities |
5,224 | 1,946 | ||||||
Amortization of mortgage servicing right asset |
1,236 | 844 | ||||||
Provision for impairment of servicing asset |
90 | | ||||||
Provision for loan losses |
1,548 | 680 | ||||||
Deferred income tax expense (benefit), net of change in valuation allowance |
(132 | ) | (444 | ) | ||||
Origination of loans held for sale |
(204,995 | ) | (140,757 | ) | ||||
Proceeds from sale of loans held for sale |
200,755 | 142,538 | ||||||
Net gain on sale of loans |
(5,550 | ) | (2,687 | ) | ||||
Gain on sale of available-for-sale securities |
(991 | ) | (672 | ) | ||||
Income from bank owned life insurance |
(166 | ) | (70 | ) | ||||
Gain on life insurance benefits |
(606 | ) | | |||||
Loss on sale and write down of foreclosed assets |
44 | 293 | ||||||
Stock-based compensation |
304 | 333 | ||||||
Compensation expense related to common stock issued to 401(k) plan |
169 | 150 | ||||||
Net change in |
||||||||
Accrued interest receivable and other assets |
(1,408 | ) | 141 | |||||
Accrued interest payable and other liabilities |
311 | 169 | ||||||
|
|
|
|
|||||
Net cash from operating activities |
690 | 5,330 | ||||||
Cash flows from investing activities |
||||||||
Available-for-sale securities: |
||||||||
Sales |
48,995 | 32,873 | ||||||
Purchases |
(139,419 | ) | (154,342 | ) | ||||
Maturities, prepayments and calls |
84,609 | 54,560 | ||||||
Held to maturity securities: |
||||||||
Purchases |
(25,892 | ) | (2,324 | ) | ||||
Maturities, prepayments and calls |
1,650 | 1,292 | ||||||
Net change in loans |
(72,690 | ) | (38,667 | ) | ||||
Purchase of bank owned life insurance |
(4,000 | ) | (4,000 | ) | ||||
Purchase of restricted equity securities |
(356 | ) | (431 | ) | ||||
Proceeds from sale of foreclosed assets |
475 | 1,872 | ||||||
Purchases of premises and equipment, net |
(956 | ) | (173 | ) | ||||
Decrease in interest-bearing deposits in financial institutions |
100 | | ||||||
|
|
|
|
|||||
Net cash from investing activities |
(107,484 | ) | (109,340 | ) | ||||
Cash flows from financing activities |
||||||||
Increase in deposits |
109,037 | 99,598 | ||||||
Decrease in federal funds purchased and repurchase agreements |
(2,278 | ) | (2,680 | ) | ||||
Proceeds from Federal Home Loan Bank advances |
1,500 | 4,000 | ||||||
Proceeds from exercise of common stock warrants |
660 | | ||||||
Proceeds from issuance of preferred stock, net of offering costs |
| 9,994 | ||||||
Dividends paid on preferred stock |
(458 | ) | | |||||
|
|
|
|
|||||
Net cash from financing activities |
108,461 | 110,912 | ||||||
|
|
|
|
|||||
Net change in cash and cash equivalents |
1,667 | 6,902 | ||||||
Cash and cash equivalents at beginning of period |
23,310 | 16,408 | ||||||
|
|
|
|
|||||
Cash and cash equivalents at end of period |
$ | 24,977 | $ | 23,310 | ||||
|
|
|
|
|||||
Supplemental information: |
||||||||
Interest paid |
$ | 4,106 | $ | 4,261 | ||||
Income taxes paid |
2,355 | 185 | ||||||
Non-cash supplemental information: |
||||||||
Transfers from loans to foreclosed assets |
$ | 1,864 | $ | 725 | ||||
Transfer from available-for-sale securities to held-to-maturity securities |
1,276 | | ||||||
Reclassification of receivable for death benefit from bank owned life insurance |
878 | |
See accompanying notes to consolidated financial statements.
F-7
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Nature of Operations and Principles of Consolidation : The consolidated financial statements include Franklin Financial Network, Inc. and its wholly owned subsidiaries, Franklin Synergy Bank and Banc Compliance Group, Inc., together referred to as the Company. Intercompany transactions and balances are eliminated in consolidation.
Franklin Financial Network, Inc. was incorporated under the laws of the State of Tennessee on April 5, 2007. Franklin Synergy Bank was incorporated under the laws of the State of Tennessee and received its Certificate of Authority from the TDFI and approval of FDIC insurance on November 2, 2007. Franklin Synergy Bank is also a Federal Reserve member bank.
The Company provides financial services through its offices in Franklin and Brentwood, TN. Its primary deposit products are checking, savings, and certificate of deposit accounts, and its primary lending products are commercial and residential construction, commercial, installment loans and lines secured by home equity. Substantially all loans are secured by specific items of collateral including commercial and residential real estate, business assets, and consumer assets. Commercial loans are expected to be repaid by cash flow from operations of businesses. There are no significant concentrations of loans to any one industry or customer. However, the customers ability to repay their loans is dependent on the real estate and general economic conditions in the area. The Company also focuses on electronic banking products such as internet banking, remote deposit capture and lockbox services.
The Company purchased the assets of Banc Compliance Group LLC in May 2008 forming a wholly owned subsidiary, Banc Compliance Group, Inc., which provides bank compliance and consulting services to community banks.
Use of Estimates : To prepare financial statements in conformity with accounting principles generally accepted in the United States of America management makes estimates and assumptions based on available information. These estimates and assumptions affect the amounts reported in the financial statements and the disclosures provided, and actual results could differ. The allowance for loan losses and fair value of financial instruments are particularly subject to change.
Cash Flows : Cash and cash equivalents include cash, deposits with other financial institutions with maturities less than 90 days, and federal funds sold. Net cash flows are reported for customer loan and deposit transactions, interest-bearing deposits in other financial institutions and federal funds purchased.
Interest-Bearing Deposits in Financial Institutions : Interest-bearing deposits in other financial institutions mature within one year and are carried at cost.
Securities : Debt securities are classified as held to maturity and carried at amortized cost when management has the positive intent and ability to hold them to maturity. Debt securities are classified as available for sale when they might be sold before maturity. Securities available for sale are carried at fair value, with unrealized holding gains and losses reported in other comprehensive income, net of tax.
Interest income includes amortization of purchase premium or discount. Premiums and discounts on securities are amortized on the level-yield method without anticipating prepayments, except for mortgage-backed securities where prepayments are anticipated. Gains and losses on sales are recorded on the trade date and determined using the specific identification method.
F-8
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Management evaluates securities for other-than-temporary impairment (OTTI) at least on a quarterly basis, and more frequently when economic or market conditions warrant such an evaluation. Management assesses whether it intends to sell, or it is more likely than not that it will be required to sell, a security in an unrealized loss position before recovery of its amortized cost basis. If either of these criteria is met, the entire difference between amortized cost and fair value is recognized as impairment through earnings. For securities that do not meet the aforementioned criteria, the amount of impairment is split into two components as follows: 1) OTTI related to credit loss, which must be recognized in the income statement and 2) OTTI related to other factors, which is recognized in other comprehensive income. The credit loss is defined as the difference between the present value of the cash flows expected to be collected and the amortized cost basis.
Loans Held for Sale : Loans originated and intended for sale in the secondary market are carried at the lower of aggregate cost or fair value, as determined by outstanding commitments from investors. Net unrealized losses, if any, are recorded as a valuation allowance and charged to earnings.
Certain loans held for sale are sold with servicing rights retained. The carrying value of loans sold with retained servicing is reduced by the amount allocated to the servicing right. Gains and losses on sales of loans are based on the difference between the selling price and the carrying value of the related loan sold.
Loans : Loans that management has the intent and ability to hold for the foreseeable future or until maturity or payoff are reported at the principal balance outstanding, net of deferred loan fees and costs and an allowance for loan losses. Interest income is accrued on the unpaid principal balance. Loan origination fees, net of certain direct origination costs, are deferred and recognized in interest income using the level-yield method without anticipating prepayments.
Interest income on mortgage and commercial loans is discontinued at the time the loan is 90 days delinquent unless the loan is well-secured and in process of collection. Past due status is based on the contractual terms of the loan. In all cases, loans are placed on nonaccrual or charged-off at an earlier date if collection of principal or interest is considered doubtful. Nonaccrual loans and loans past due 90 days still on accrual include both smaller balance homogeneous loans that are collectively evaluated for impairment and individually classified impaired loans. A loan is moved to non-accrual status in accordance with the Companys policy, typically after 90 days of non-payment.
All interest accrued but not received for loans placed on nonaccrual is reversed against interest income. Interest received on such loans is accounted for on the cash-basis or cost-recovery method, until qualifying for return to accrual. Loans are returned to accrual status when all the principal and interest amounts contractually due are brought current and future payments are reasonably assured.
Concentration of Credit Risk : Most of the Companys business activity is with customers located within Williamson County. Therefore, the Companys exposure to credit risk is significantly affected by changes in the economy in the Williamson County area.
Allowance for Loan Losses : The allowance for loan losses is a valuation allowance for probable incurred credit losses. Loan losses are charged against the allowance when management believes the uncollectibility of a loan balance is confirmed. Subsequent recoveries, if any, are credited to the allowance. Management estimates the allowance balance required using past loan loss experience, the nature and volume of the portfolio, information about specific borrower situations and estimated collateral values, economic conditions, and other factors. Allocations of the allowance may be made for specific loans, but the entire allowance is available for any loan that, in managements judgment, should be charged off.
F-9
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
The allowance consists of specific and general components. The specific component relates to loans that are individually classified as impaired. A loan is impaired when, based on current information and events, it is probable that the Company will be unable to collect all amounts due according to the contractual terms of the loan agreement. Loans for which the terms have been modified resulting in a concession, and for which the borrower is experiencing financial difficulties, are considered troubled debt restructurings and classified as impaired.
Factors considered by management in determining impairment include payment status, collateral value, and the probability of collecting scheduled principal and interest payments when due. Loans that experience insignificant payment delays and payment shortfalls generally are not classified as impaired. Management determines the significance of payment delays and payment shortfalls on case-by-case basis, taking into consideration all of the circumstances surrounding the loan and the borrower, including the length of the delay, the reasons for the delay, the borrowers prior payment record, and the amount of the shortfall in relation to the principal and interest owed.
All loans classified by management as substandard or worse are individually evaluated for impairment. If a loan is impaired, a portion of the allowance is allocated so that the loan is reported, net, at the present value of estimated future cash flows using the loans existing rate or at the fair value of collateral if repayment is expected solely from the collateral
Troubled debt restructurings are separately identified for impairment disclosures and are measured at the present value of estimated future cash flows using the loans effective rate at inception. If a troubled debt restructuring is considered to be a collateral dependent loan, the loan is reported, net, at the fair value of the collateral. For troubled debt restructurings that subsequently default, the Company determines the amount of reserve in accordance with the accounting policy for the allowance for loan losses.
The general component covers non-impaired loans and is based on historical loss experience adjusted for current factors. The historical loss experience is determined by portfolio segment and is based on a combination of the Banks loss history and loss history from the Banks peer group over the past three years. This actual loss experience is supplemented with other economic factors based on the risks present for each portfolio segment. These economic factors include consideration of the following: levels of and trends in delinquencies and impaired loans; levels of and trends in charge-offs and recoveries; trends in volume and terms of loans; effects of any changes in risk selection and underwriting standards; other changes in lending policies, procedures, and practices; experience, ability, and depth of lending management and other relevant staff; national and local economic trends and conditions; industry conditions; and effects of changes in credit concentrations. The following portfolio segments have been identified:
Construction and land development loans include loans to finance the process of improving loans preparatory to erecting new structures or the on-site construction of industrial, commercial, residential or farm buildings. Construction and land development loans also include loans secured by vacant land, except land known to be used or usable for agricultural purposes. Construction loans generally are made for relatively short terms. They generally are more vulnerable to changes in economic conditions. Further, the nature of these loans is such that they are more difficult to evaluate and monitor. The risk of loss on a construction loan is dependent largely upon the accuracy of the initial estimate of the propertys value upon completion of the project and the estimated cost (including interest) of the project. Periodic site inspections are made on construction loans.
Commercial real estate loans include loans secured by non-residential real estate, including farmland and improvements thereon. Often these loans are made to single borrowers or groups of related borrowers, and the repayment of these loans largely depends on the results of operations and management of these properties. Adverse economic conditions may affect the repayment ability of these loans.
F-10
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Residential real estate loans include loans secured by residential real estate, including single-family and multi-family dwellings. Mortgage title insurance and hazard insurance are normally required. Adverse economic conditions in the Companys market area may reduce borrowers ability to repay these loans and may reduce the collateral securing these loans.
Commercial and industrial loans include loans for commercial, industrial or agricultural purposes to business enterprises that are not secured by real estate. Commercial loans are typically made on the basis of the borrowers ability to repay from the cash flow of the borrowers business. Commercial and Agriculture loans are generally secured by accounts receivable, inventory and equipment. The collateral securing loans may depreciate over time, may be difficult to appraise and may fluctuate in value based on the success of the business.
Consumer and other loans include loans to individuals for household, family and other personal expenditures that are not secured by real estate. Consumer loans are generally secured by customer deposit accounts, vehicles and other household goods. The collateral securing consumer loans may depreciate over time.
Servicing Rights : When loans are sold with servicing retained, servicing rights are initially recorded at fair value with the income statement effect recorded in gain on sale of loans. Fair value is based on market prices for comparable servicing contracts. All classes of servicing assets are subsequently measured using the amortization method which requires servicing rights to be amortized into non-interest income in proportion to, and over the period of, the estimated future net servicing income of the underlying loans.
Servicing assets are evaluated for impairment based upon the fair value of the rights as compared to carrying amount. Impairment is determined by stratifying rights into groupings based on predominant risk characteristics, such as interest rate, loan type and investor type. Impairment is recognized through a valuation allowance for an individual grouping, to the extent that fair value is less than the carrying amount. If the Company later determines that all or a portion of the impairment no longer exists for a particular grouping, a reduction of the allowance may be recorded as an increase to income. Changes in valuation allowances are reported with loan servicing fees on the income statement. The fair values of servicing rights are subject to significant fluctuations as a result of changes in estimated and actual prepayment speeds and default rates and losses.
Servicing fee income, which is reported on the income statement as loan servicing fees, is recorded for fees earned for servicing loans. The fees are based on a contractual percentage of the outstanding principal; or a fixed amount per loan and are recorded as income when earned. The amortization of mortgage servicing rights is netted against mortgage loan servicing fee income. Servicing fees totaled $590 and $512 for the years ended December 31, 2012 and 2011, respectively. Late fees and ancillary fees related to loan servicing are not material.
Transfers of Financial Assets : Transfers of financial assets are accounted for as sales, when control over the assets has been relinquished. Control over transferred assets is deemed to be surrendered when the assets have been isolated from the Company, the transferee obtains the right (free of conditions that constrain it from taking advantage of that right) to pledge or exchange the transferred assets, and the Company does not maintain effective control over the transferred assets through an agreement to repurchase them before their maturity.
Foreclosed Assets : Assets acquired through or instead of loan foreclosure are initially recorded at fair value less costs to sell when acquired, establishing a new cost basis. If fair value declines subsequent to foreclosure, a valuation allowance is recorded through expense. Operating costs after acquisition are expensed.
F-11
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
Premises and Equipment : Premises and equipment are stated at cost less accumulated depreciation and are depreciated using the straight-line method. Depreciation periods are shorter of the assets useful life or lease period, ranging from three to fifteen years.
Restricted Equity Securities : The Bank is a member of the Federal Reserve Bank (FRB) and the Federal Home Loan Bank (FHLB) system. Members of the FHLB are required to own a certain amount of stock based on the level of borrowings and other factors, and may invest in additional amounts. The stock ownership in FRB and FHLB are carried at cost, classified as a restricted securities, and periodically evaluated for impairment based on ultimate recovery of par value. Both cash and stock dividends are reported as income.
Goodwill : Goodwill resulting from business combinations prior to January 1, 2009 represents the excess of the purchase price over the fair value of the net assets of businesses acquired. Goodwill and intangible assets acquired in a purchase business combination and determined to have an indefinite useful life are not amortized, but tested for impairment at least annually. The Company has selected December 31 as the date to perform the annual impairment test. Intangible assets with definite useful lives are amortized over their estimated useful lives to their estimated residual values. Goodwill is the only intangible asset with an indefinite life on the balance sheet.
Long-Term Assets : Premises and equipment and other long-term assets are reviewed for impairment when events indicate their carrying amount may not be recoverable from future undiscounted cash flows. If impaired, the assets are recorded at fair value.
Loan Commitments and Related Financial Instruments : Financial instruments include off-balance sheet credit instruments, such as commitments to make loans and commercial letters of credit, issued to meet customer financing needs. The face amount for these items represents the exposure to loss, before considering customer collateral or ability to repay. Such financial instruments are recorded when they are funded.
Mortgage Banking Derivatives : Commitments to fund mortgage loans (interest rate locks) to be sold into the secondary market and forward commitments for the future delivery of these mortgage loans are accounted for as free standing derivatives. Fair values of these mortgage derivatives are estimated based on changes in mortgage interest rates from the date the interest on the loan is locked. The Company enters into forward commitments for the future delivery of mortgage loans when interest rate locks are entered into, in order to hedge the change in interest rates resulting from its commitments to fund the loans. Changes in the fair values of these derivatives are included in net gains on sale of mortgage loans.
Stock-Based Compensation : Compensation cost is recognized for stock options issued to employees, based on the fair value of these awards at the date of grant. A Black-Scholes model is utilized to estimate the fair value of stock options. Compensation cost is recognized over the required service period, generally defined as the vesting period. For awards with graded vesting, compensation cost is recognized on a straight-line basis over the requisite service period for the entire award.
Income Taxes : Income tax expense or benefit is the total of the current year income tax due or refundable and the change in deferred tax assets and liabilities. Deferred tax assets and liabilities are the expected future tax amounts for the temporary differences between carrying amounts and tax bases of assets and liabilities, computed using enacted tax rates. A valuation allowance, if needed, reduces deferred tax assets to the amount expected to be realized.
F-12
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (Continued)
A tax position is recognized as a benefit only if it is more likely than not that the tax position would be sustained in a tax examination, with a tax examination being presumed to occur. The amount recognized is the largest amount of tax benefit that is greater than 50% likely of being realized on examination. For tax positions not meeting the more likely than not test, no tax benefit is recorded.
The Company recognizes interest and/or penalties related to income tax matters in income tax expense.
Retirement Plans : Employee 401(k) and profit sharing plan expense is the amount of matching contributions. The matching contributions are paid with employer stock. An annual stock valuation is performed for the employer stock match calculation.
Comprehensive Income : Comprehensive income consists of net income and other comprehensive income. Other comprehensive income includes unrealized gains and losses on securities available for sale which is recognized as a separate component of equity.
Earnings Per Common Share : Basic earnings per common share is net income divided by the weighted average number of common shares outstanding during the period. All outstanding unvested share-based payment awards that contain rights to nonforfeitable dividends are considered participating securities for this calculation. Diluted earnings per common share includes the dilutive effect of additional potential common shares issuable under stock options. Earnings and dividends per share are restated for all stock splits and stock dividends through the date of issuance of the financial statements.
Loss Contingencies : Loss contingencies, including claims and legal actions arising in the ordinary course of business, are recorded as liabilities when the likelihood of loss is probable and an amount or range of loss can be reasonably estimated. Management does not believe there now are such matters that will have a material effect on the financial statements.
Restrictions on Cash : Cash on hand or on deposit with the Federal Reserve Bank was required to meet regulatory reserve and clearing requirements.
Dividend Restriction : Banking regulations require maintaining certain capital levels and may limit the dividends paid by the bank to the holding company or by the holding company to shareholders.
Fair Value of Financial Instruments : Fair values of financial instruments are estimated using relevant market information and other assumptions, as more fully disclosed in a separate note. Fair value estimates involve uncertainties and matters of significant judgment regarding interest rates, credit risk, prepayments, and other factors, especially in the absence of broad markets for particular items. Changes in assumptions or in market conditions could significantly affect the estimates.
Operating Segments : While the chief decision-makers monitor the revenue streams of the various products and services, operations are managed and financial performance is evaluated on a Company-wide basis. Operating segments are aggregated into one as operating results for all segments are similar. Accordingly, all of the financial service operations are considered by management to be aggregated in one reportable operating segment.
Reclassifications : Some items in the prior year financial statements were reclassified to conform to the current presentation. Reclassifications had no effect on prior year net income or shareholders equity.
F-13
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 2 - SECURITIES
The following table summarizes the amortized cost and fair value of the available for sale securities portfolio at December 31, 2012 and 2011 and the corresponding amounts of gross unrealized gains and losses recognized in accumulated other comprehensive income were as follows:
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair
Value |
|||||||||||||
2012 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 4,020 | $ | 7 | $ | (5 | ) | $ | 4,022 | |||||||
U.S. Treasury securities |
8,000 | | | 8,000 | ||||||||||||
Mortgage-backed securities: residential |
169,902 | 2,074 | (543 | ) | 171,433 | |||||||||||
State and political subdivision |
2,690 | | (27 | ) | 2,663 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 184,612 | $ | 2,081 | $ | (575 | ) | $ | 186,118 | |||||||
|
|
|
|
|
|
|
|
|||||||||
2011 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 1,000 | $ | 1 | $ | | $ | 1,001 | ||||||||
U.S. Treasury securities |
5,000 | | | 5,000 | ||||||||||||
Mortgage-backed securities: residential |
178,152 | 2,613 | (93 | ) | 180,672 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 184,152 | $ | 2,614 | $ | (93 | ) | $ | 186,673 | |||||||
|
|
|
|
|
|
|
|
The amortized cost and fair value of the held to maturity securities portfolio at December 31, 2012 and 2011 and the corresponding amounts of gross unrecognized gains and losses were as follows:
Amortized
Cost |
Gross
Unrecognized Gains |
Gross
Unrecognized Losses |
Fair
Value |
|||||||||||||
2012 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 2,971 | $ | 30 | $ | | $ | 3,001 | ||||||||
Mortgage-backed securities: residential |
24,686 | 485 | (38 | ) | 25,133 | |||||||||||
State and political subdivision |
6,158 | 234 | (9 | ) | 6,383 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 33,815 | $ | 749 | $ | (47 | ) | $ | 34,517 | |||||||
|
|
|
|
|
|
|
|
|||||||||
2011 |
||||||||||||||||
Mortgage-backed securities: residential |
$ | 6,327 | $ | 308 | $ | | $ | 6,635 | ||||||||
State and political subdivision |
2,124 | 112 | (14 | ) | 2,222 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 8,451 | $ | 420 | $ | (14 | ) | $ | 8,857 | |||||||
|
|
|
|
|
|
|
|
Sales of available-for-sale securities were as follows:
2012 | 2011 | |||||||
Proceeds |
$ | 48,995 | $ | 32,873 | ||||
Gross gains |
1,011 | 672 | ||||||
Gross losses |
(20 | ) | |
F-14
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 2 - SECURITIES (Continued)
The amortized cost and fair value of the investment securities portfolio are shown by contractual maturity. Securities not due at a single maturity date, primarily mortgage-backed securities, are shown separately.
December 31, 2012 | ||||||||
Amortized
Cost |
Fair Value |
|||||||
Available for sale |
||||||||
Due in one year or less |
$ | 10,690 | $ | 10,663 | ||||
Beyond ten years |
4,020 | 4,022 | ||||||
Mortgage-backed securities: residential |
169,902 | 171,433 | ||||||
|
|
|
|
|||||
Total |
$ | 184,612 | $ | 186,118 | ||||
|
|
|
|
|||||
Held to maturity |
||||||||
One to five years |
$ | 254 | $ | 259 | ||||
Five to ten years |
2,584 | 2,716 | ||||||
Beyond ten years |
6,291 | 6,409 | ||||||
Mortgage-backed securities: residential |
24,686 | 25,133 | ||||||
|
|
|
|
|||||
Total |
$ | 33,815 | $ | 34,517 | ||||
|
|
|
|
Securities pledged at year end 2012 and 2011 had a carrying amount of $154,221 for both years and were pledged to secure public deposits and repurchase agreements.
At year end 2012 and 2011, there were no holdings of securities of any one issuer, other than the U.S. government-sponsored entities and agencies, in an amount greater than 10% of shareholders equity.
The following table summarizes the securities with unrealized losses at December 31, 2012 and December 31, 2011 aggregated by major security type and length of time in a continuous unrealized loss position:
Less Than 12 Months | 12 Months or Longer | Total | ||||||||||||||||||||||
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
|||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Available for sale |
||||||||||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 2,015 | $ | (5 | ) | $ | | $ | | $ | 2,015 | $ | (5 | ) | ||||||||||
Mortgage-backed securities: residential |
68,152 | (530 | ) | 1,392 | (13 | ) | 69,544 | (543 | ) | |||||||||||||||
State and political subdivisions |
2,663 | (27 | ) | | | 2,663 | (27 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total available for sale |
$ | 72,830 | $ | (562 | ) | $ | 1,392 | $ | (13 | ) | $ | 74,222 | $ | (575 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Held to maturity |
||||||||||||||||||||||||
Mortgage-backed securities: residential |
$ | 4,842 | $ | (38 | ) | $ | | $ | | $ | 4,842 | $ | (38 | ) | ||||||||||
State and political subdivisions |
2,842 | (9 | ) | | | 2,842 | (9 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total held to maturity |
$ | 7,684 | $ | (47 | ) | $ | | $ | | $ | 7,684 | $ | (47 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-15
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 2 - SECURITIES (Continued)
Less Than 12 Months | 12 Months or Longer | Total | ||||||||||||||||||||||
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
|||||||||||||||||||
December 31, 2011 |
||||||||||||||||||||||||
Available for sale |
||||||||||||||||||||||||
Mortgage-backed securities: residential |
$ | 38,464 | $ | (93 | ) | $ | | $ | | $ | 38,464 | $ | (93 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total available for sale |
$ | 38,464 | $ | (93 | ) | $ | | $ | | $ | 38,464 | $ | (93 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Held to maturity |
||||||||||||||||||||||||
State and political subdivisions |
$ | 273 | $ | (14 | ) | $ | | $ | | $ | 273 | $ | (14 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total held to maturity |
$ | 273 | $ | (14 | ) | $ | | $ | | $ | 273 | $ | (14 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized losses on debt securities have not been recognized into income because the issuers bonds are of high credit quality (rated AA or higher), management does not intend to sell and it is likely that management will not be required to sell the securities prior to their anticipated recovery, and the decline in fair value is largely due to changes in interest rates and other market conditions. The fair value is expected to recover as the bonds approach maturity.
NOTE 3 - LOANS
Loans at year end were as follows:
2012 | 2011 | |||||||
Construction and land development |
$ | 83,767 | $ | 49,920 | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
68,042 | 56,841 | ||||||
Other |
9,640 | 8,981 | ||||||
Residential real estate: |
||||||||
1-4 family |
76,849 | 67,454 | ||||||
Other |
29,740 | 24,442 | ||||||
Commercial and industrial |
20,280 | 14,315 | ||||||
Consumer and other |
11,758 | 8,132 | ||||||
|
|
|
|
|||||
Subtotal |
300,076 | 230,085 | ||||||
Deferred loan fees, net |
(593 | ) | (450 | ) | ||||
Allowance for loan losses |
(3,983 | ) | (3,413 | ) | ||||
|
|
|
|
|||||
Net loans |
$ | 295,500 | $ | 226,222 | ||||
|
|
|
|
F-16
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
The following table presents the activity in the allowance for loan losses by portfolio segment for the years ending December 31, 2012 and 2011:
Construction
and Land Development |
Commercial
Real Estate |
Residential
Real Estate |
Commercial
and Industrial |
Consumer
and Other |
Total | |||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Beginning balance |
$ | 928 | $ | 1,151 | $ | 1,043 | $ | 188 | $ | 103 | $ | 3,413 | ||||||||||||
Provision for loan losses |
381 | 691 | 279 | 87 | 110 | 1,548 | ||||||||||||||||||
Loans charged-off |
(25 | ) | (575 | ) | (443 | ) | | (7 | ) | (1,050 | ) | |||||||||||||
Recoveries |
58 | | 14 | | | 72 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,342 | $ | 1,267 | $ | 893 | $ | 275 | $ | 206 | 3,983 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2011 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Beginning balance |
$ | 696 | $ | 1,130 | $ | 1,070 | $ | 217 | $ | 63 | $ | 3,177 | ||||||||||||
Provision for loan losses |
232 | 21 | 390 | (3 | ) | 40 | 680 | |||||||||||||||||
Loans charged-off |
| | (418 | ) | (26 | ) | | (444 | ) | |||||||||||||||
Recoveries |
| | | | | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 928 | $ | 1,151 | $ | 1,043 | $ | 188 | $ | 103 | $ | 3,413 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-17
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
The following table presents the balance in the allowance for loan losses and the recorded investment in loans by portfolio segment and based on impairment method as of December 31, 2012 and 2011. For purposes of this disclosure, recorded investment in loans excludes accrued interest receivable and loan fees, net due to immateriality.
Construction
and Land Development |
Commercial
Real Estate |
Residential
Real Estate |
Commercial
and Industrial |
Consumer
and Other |
Total | |||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Ending allowance balance attributable to loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 41 | $ | 375 | $ | 93 | $ | | $ | | $ | 509 | ||||||||||||
Collectively evaluated for impairment |
1,301 | 892 | 800 | 275 | 206 | 3,474 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,342 | $ | 1,267 | $ | 893 | $ | 275 | $ | 206 | $ | 3,983 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 76 | $ | 1,375 | $ | 1,263 | $ | | $ | | $ | 2,714 | ||||||||||||
Collectively evaluated for impairment |
83,691 | 76,307 | 105,326 | 20,280 | 11,758 | 297,362 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending loans balance |
$ | 83,767 | $ | 77,682 | $ | 106,589 | $ | 20,280 | $ | 11,758 | $ | 300,076 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Construction
and Land Development |
Commercial
Real Estate |
Residential
Real Estate |
Commercial
and Industrial |
Consumer
and Other |
Total | |||||||||||||||||||
December 31, 2011 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Ending allowance balance attributable to loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 41 | $ | 575 | $ | 350 | $ | | $ | | $ | 966 | ||||||||||||
Collectively evaluated for impairment |
887 | 576 | 693 | 188 | 103 | 2,447 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 928 | $ | 1,151 | $ | 1,043 | $ | 188 | $ | 103 | $ | 3,413 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 91 | $ | 1,949 | $ | 3,362 | $ | | $ | | $ | 5,402 | ||||||||||||
Collectively evaluated for impairment |
49,829 | 63,873 | 88,534 | 14,314 | 8,132 | 224,682 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending loans balance |
$ | 49,920 | $ | 65,822 | $ | 91,896 | $ | 14,314 | $ | 8,132 | $ | 230,085 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-18
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
The following table presents information related to impaired loans by class of loans as of and for the year ended December 31, 2012 and 2011:
Unpaid
Principal Balance |
Recorded
Investment |
Allowance
for Loan Losses Allocated |
Average
Recorded Investment |
|||||||||||||
December 31, 2012 |
||||||||||||||||
With no allowance recorded: |
||||||||||||||||
Residential real estate: |
$ | $ | $ | $ | ||||||||||||
1-4 family |
37 | 37 | | 37 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Subtotal |
37 | 37 | | 37 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
With an allowance recorded: |
||||||||||||||||
Construction and land development |
76 | 76 | 41 | 84 | ||||||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
2,480 | 1,375 | 375 | 1,558 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
1,687 | 1,226 | 93 | 1,271 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Subtotal |
4,243 | 2,677 | 509 | 2,913 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 4,280 | $ | 2,714 | $ | 509 | $ | 2,950 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2011 |
||||||||||||||||
With an allowance recorded: |
||||||||||||||||
Construction and land development |
$ | 91 | $ | 91 | $ | 41 | $ | 93 | ||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
2,480 | 1,949 | 575 | 1,949 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
3,381 | 3,077 | 314 | 1,763 | ||||||||||||
Other |
285 | 285 | 36 | 143 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Subtotal |
6,287 | 5,402 | 966 | 3,948 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 6,287 | $ | 5,402 | $ | 966 | $ | 3,948 | ||||||||
|
|
|
|
|
|
|
|
The impact on interest income for these loans was not material to the Banks results of operating during the years ending December 31, 2012 and 2011.
F-19
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
The following table presents the recorded investment in nonaccrual and loans past due over 90 days still on accrual by class of loans as of December 31, 2012 and 2011:
Nonaccrual |
Loans Past Due
Over 90 Days |
|||||||
December 31, 2012 |
||||||||
Construction and land development |
$ | 76 | $ | | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
1,375 | | ||||||
Residential real estate: |
||||||||
1-4 family |
1,226 | | ||||||
|
|
|
|
|||||
Total |
$ | 2,677 | $ | | ||||
|
|
|
|
|||||
December 31, 2011 |
||||||||
Construction and land development |
$ | 291 | $ | | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
1,950 | | ||||||
Residential real estate: |
||||||||
1-4 family |
1,170 | | ||||||
Commercial and industrial |
20 | | ||||||
|
|
|
|
|||||
Total |
$ | 3,431 | $ | | ||||
|
|
|
|
Nonaccrual loans and loans past due 90 days still on accrual include both smaller balance homogeneous loans that are collectively evaluated for impairment and individually classified impaired loans.
The following table presents the aging of the recorded investment in past due loans as of December 31, 2012 and 2011 by class of loans:
30-59
Days Past Due |
60-89
Days Past Due |
Greater
Than 89 Days Past Due |
Total
Past Due |
Loans
Not Past Due |
Total | |||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Construction and land development |
$ | | $ | | $ | | $ | | $ | 83,767 | $ | 83,767 | ||||||||||||
Commercial real estate: |
||||||||||||||||||||||||
Nonfarm, nonresidential |
| | 1,375 | 1,375 | 66,667 | 68,042 | ||||||||||||||||||
Other |
| | | | 9,640 | 9,640 | ||||||||||||||||||
Residential real estate: |
||||||||||||||||||||||||
1-4 family |
| 37 | 1,226 | 1,263 | 75,586 | 76,849 | ||||||||||||||||||
Other |
| | | | 29,740 | 29,740 | ||||||||||||||||||
Commercial and industrial |
| | | | 20,280 | 20,280 | ||||||||||||||||||
Consumer and other |
| | | | 11,758 | 11,758 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | | $ | 37 | $ | 2,601 | $ | 2,638 | $ | 297,438 | $ | 300,076 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-20
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
30-59
Days Past Due |
60-89
Days Past Due |
Greater
Than 89 Days Past Due |
Total
Past Due |
Loans
Not Past Due |
Total | |||||||||||||||||||
December 31, 2011 |
||||||||||||||||||||||||
Construction and land development |
$ | 1,016 | $ | | $ | 200 | $ | 1,216 | $ | 48,704 | $ | 49,920 | ||||||||||||
Commercial real estate: |
||||||||||||||||||||||||
Nonfarm, nonresidential |
957 | | 1,950 | 2,907 | 53,934 | 56,841 | ||||||||||||||||||
Other |
| | | | 8,981 | 8,981 | ||||||||||||||||||
Residential real estate: |
||||||||||||||||||||||||
1-4 family |
608 | | 1,170 | 1,778 | 65,676 | 67,454 | ||||||||||||||||||
Other |
53 | | | 53 | 24,389 | 24,442 | ||||||||||||||||||
Commercial and industrial |
315 | 29 | 20 | 364 | 13,951 | 14,315 | ||||||||||||||||||
Consumer and other |
153 | | | 153 | 7,979 | 8,132 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total |
$ | 3,102 | $ | 29 | $ | 3,340 | $ | 6,471 | $ | 223,614 | $ | 230,085 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Credit Quality Indicators: The Company categorizes loans into risk categories based on relevant information about the ability of borrowers to service their debt such as: current financial information, historical payment experience, credit documentation, public information, and current economic trends, among other factors. The Company analyzes loans individually by classifying the loans as to credit risk. This analysis includes non-homogeneous loans, such as commercial and commercial real estate loans as well as non-homogeneous residential real estate loans. This analysis is performed on a quarterly basis. The Company uses the following definitions for risk ratings:
Special Mention. Loans classified as special mention have a potential weakness that deserves managements close attention. If left uncorrected, these potential weaknesses may result in deterioration of the repayment prospects for the loan or of the institutions credit position at some future date.
Substandard. Loans classified as substandard are inadequately protected by the current net worth and paying capacity of the obligor or of the collateral pledged, if any. Loans so classified have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the institution will sustain some loss if the deficiencies are not corrected.
Loans not meeting the criteria above that are analyzed individually as part of the above described process are considered to be pass-rated loans. Based on the most recent analysis performed, the risk category of loans by class of loans is as follows as of year-end 2012 and 2011:
Pass |
Special
Mention |
Substandard | Total | |||||||||||||
December 31, 2012 |
||||||||||||||||
Construction and land development |
$ | 83,691 | $ | | $ | 76 | $ | 83,767 | ||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
64,176 | 1,932 | 1,934 | 68,042 | ||||||||||||
Other |
9,140 | | 500 | 9,640 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
71,236 | 3,400 | 2,213 | 76,849 | ||||||||||||
Other |
29,141 | | 599 | 29,740 | ||||||||||||
Commercial and industrial |
20,000 | | 280 | 20,280 | ||||||||||||
Consumer and other |
11,758 | | | 11,758 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 289,142 | $ | 5,332 | $ | 5,602 | $ | 300,076 | ||||||||
|
|
|
|
|
|
|
|
F-21
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 3 - LOANS (Continued)
Pass |
Special
Mention |
Substandard | Total | |||||||||||||
December 31, 2011 |
||||||||||||||||
Construction and land development |
$ | 49,829 | $ | | $ | 91 | $ | 49,920 | ||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
53,913 | 60 | 2,868 | 56,841 | ||||||||||||
Other |
8,981 | | | 8,981 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
60,915 | 2,494 | 4,045 | 67,454 | ||||||||||||
Other |
23,552 | 606 | 284 | 24,442 | ||||||||||||
Commercial and industrial |
14,035 | | 280 | 14,315 | ||||||||||||
Consumer and other |
7,830 | 302 | | 8,132 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 219,055 | $ | 3,462 | $ | 7,568 | $ | 230,085 | ||||||||
|
|
|
|
|
|
|
|
NOTE 4 - LOAN SERVICING
Loans serviced for others are not reported as assets. The principal balances of these loans at year end are as follows:
2012 | 2011 | |||||||
Loan portfolios serviced for: |
||||||||
Federal Home Loan Mortgage Corporation |
$ | 274,885 | $ | 219,397 | ||||
Other |
2,139 | |
Custodial escrow balances maintained in connection with serviced loans were $1,118 and $958 at year end 2012 and 2011.
The related loan servicing rights activity for the years ending December 31, 2012 and 2011 were as follows:
2012 | 2011 | |||||||
Servicing rights: |
||||||||
Beginning of year |
$ | 2,329 | $ | 2,321 | ||||
Additions |
1,398 | 852 | ||||||
Amortized to expense |
(1,236 | ) | (844 | ) | ||||
Impairment |
(90 | ) | | |||||
|
|
|
|
|||||
End of year |
$ | 2,401 | $ | 2,329 | ||||
|
|
|
|
The components of loan servicing fees, net for the years ending December 31, 2012 and 2011 were as follows:
2012 | 2011 | |||||||
Loan servicing fees, net: |
||||||||
Loan servicing fees |
$ | 590 | $ | 512 | ||||
Amortization of loan servicing fees |
(1,236 | ) | (844 | ) | ||||
Impairment |
(90 | ) | | |||||
|
|
|
|
|||||
Total |
$ | (736 | ) | $ | (332 | ) | ||
|
|
|
|
F-22
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 4 - LOAN SERVICING (Continued)
The fair value of servicing rights was estimated by management to be approximately $2,401 at year-end 2012. Fair value at year-end 2012 was determined using a weighted average discount rate of 10.5% and a weighted average prepayment speed of 13.6%. At year-end 2011, the fair value of servicing rights was estimated by management to be approximately $2,300. Fair value at year-end 2011 was determined using weighted average discount rate of 7.8% and a weighted average prepayment speed of 19.5%.
The weighted average amortization period is 2.81 years. Estimated amortization expense for each of the next three years is:
2013 |
$ | 853 | ||
2014 |
853 | |||
2015 |
695 |
NOTE 5 - PREMISES AND EQUIPMENT
Year-end premises and equipment were as follows:
2012 | 2011 | |||||||
Construction in progress |
$ | 61 | $ | 1 | ||||
Leasehold improvement |
2,142 | 1,764 | ||||||
Furniture, fixtures and equipment |
2,158 | 1,804 | ||||||
Computer equipment and software |
1,561 | 1,397 | ||||||
Automobile |
27 | 27 | ||||||
|
|
|
|
|||||
5,949 | 4,993 | |||||||
Accumulated depreciation |
(3,005 | ) | (2,288 | ) | ||||
|
|
|
|
|||||
Total |
$ | 2,944 | $ | 2,705 | ||||
|
|
|
|
Depreciation expense was $717 and $712, for each of the years in the two year period ending December 31, 2012.
Operating Leases : The Company leases its branches, loan production and administrative offices under operating leases. Rent expense was $1,143 and $1,027 for 2012 and 2011. Rent commitments, over the initial lease terms and intended renewal periods, were as follows:
Related
Parties |
Other | Total | ||||||||||
2013 |
$ | 496 | $ | 711 | $ | 1,207 | ||||||
2014 |
504 | 441 | 945 | |||||||||
2015 |
512 | 166 | 678 | |||||||||
2016 |
520 | 124 | 644 | |||||||||
2017 |
527 | 41 | 568 | |||||||||
Thereafter |
4,123 | | 4,123 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 6,682 | $ | 1,483 | $ | 8,165 | ||||||
|
|
|
|
|
|
F-23
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 6 - DEPOSITS
Time deposits of $100 or more were $73,875 and $62,744 at year end 2012 and 2011. The Company had $3,366 and $5,116 of brokered deposits at December 31, 2012 and 2011.
Scheduled maturities of time deposits for the next five years were as follows:
2013 |
$ | 83,392 | ||
2014 |
23,919 | |||
2015 |
7,783 | |||
2016 |
7,632 | |||
2017 |
5,239 |
NOTE 7 - FEDERAL FUNDS PURCHASED AND REPURCHASE AGREEMENTS
As of December 31, 2012 and 2011, the Bank had federal funds lines (or the equivalent thereof) with correspondent banks totaling $53,800 and $49,300. There was $20 and $0 outstanding at year end 2012 and 2011.
As of December 31, 2012 and 2011, securities sold under agreements to repurchase had an outstanding balance of $1,582 and $3,880 and are secured by securities with a carrying amount of $4,941. Securities sold under agreements to repurchase are financing arrangements that mature daily. At maturity, the securities underlying the agreements are returned to the Company.
Information concerning securities sold under agreements to repurchase is summarized as follows:
2012 | 2011 | |||||||
Average daily balance during the year |
$ | 3,904 | $ | 2,743 | ||||
Average interest rate during the year |
0.71 | % | 0.69 | % | ||||
Maximum month-end balance during the year |
$ | 4,744 | $ | 3,880 | ||||
Weighted average interest rate at year end |
0.73 | % | 0.74 | % |
NOTE 8 - FEDERAL HOME LOAN BANK ADVANCES
The Bank has established a line of credit with the Federal Home Loan Bank of Cincinnati (FHLB), which is secured by a blanket pledge of 1-4 family residential mortgage loans. The extent of the line is dependent, in part, on available collateral. The arrangement is structured so that the carrying value of the loans pledged amounts to 125% on residential 1-4 family loans of the principal balance of the advances from the FHLB.
At December 31, advances from the Federal Home Loan Bank were as follows:
2012 | 2011 | |||||||
Maturity June 11, 2015 with a fixed rate of .70% |
$ | 2,000 | $ | 2,500 | ||||
Maturity October 28, 2014 with a fixed rate of .82% |
4,000 | 4,000 | ||||||
Maturity June 11, 2018 with a fixed rate of 1.45% |
2,000 | | ||||||
|
|
|
|
|||||
Total |
$ | 8,000 | $ | 6,500 | ||||
|
|
|
|
F-24
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 8 - FEDERAL HOME LOAN BANK ADVANCES (Continued)
The advance is payable at its maturity date, with a prepayment penalty for fixed rate advances. Qualifying loans totaling approximately $89,934 were pledged as security under a blanket pledge agreement with the FHLB at December 31, 2012. Based on this collateral and the Companys holdings of FHLB stock, the Bank is eligible to borrow up to an additional $64,713 as of December 31, 2012.
NOTE 9 - BENEFIT PLANS
A 401(k) benefit plan was adopted to begin benefits on May 1, 2008. The 401(k) benefit plan allows employee contributions up to $16,500 of their compensation, which are matched in the Companys common stock equal to 100% of the first 2% of the compensation contributed and 50% of the next 4% of the compensation contributed. Expense for each of the years in the two year period ending December 31, 2012 was $223 and $164. Because the Companys stock was not traded on an established market, it is required to provide the participants in the Plan with a put option to repurchase their shares. At December 31, 2012, the fair value of the shares in the Plan had an estimated fair value of $558 based on a valuation completed by a third party.
NOTE 10 - INCOME TAXES
A reconciliation of the income tax expense for the two year period ended December 31, 2012 to the expected tax expense computed by applying the statutory federal income tax rate of 34 percent to income before income tax expense is as follows:
2012 | 2011 | |||||||
Computed expected tax expense |
$ | 2,107 | $ | 770 | ||||
Increase (reduction) in tax expense resulting from: |
||||||||
State tax expense, net of federal tax effect |
247 | 107 | ||||||
Incentive stock options |
95 | 85 | ||||||
Bank owned life insurance |
(217 | ) | (24 | ) | ||||
Tax-exempt interest income, net of expense |
(34 | ) | | |||||
Other |
(142 | ) | 15 | |||||
Change in valuation allowance |
| (843 | ) | |||||
|
|
|
|
|||||
Income tax expense |
$ | 2,056 | $ | 111 | ||||
|
|
|
|
Income tax expense (benefit) was as follows:
2012 | 2011 | |||||||
Current expense |
||||||||
Federal |
$ | 1,786 | $ | 421 | ||||
State |
402 | 134 | ||||||
Deferred expense |
||||||||
Federal |
(104 | ) | 371 | |||||
State |
(28 | ) | 28 | |||||
Change in valuation allowance |
| (843 | ) | |||||
|
|
|
|
|||||
Income tax expense |
$ | 2,056 | $ | 111 | ||||
|
|
|
|
F-25
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 10 - INCOME TAXES (Continued)
The sources of deferred income tax assets (liabilities) at December 31, 2012 and 2011 and the tax effect is as follows:
2012 | 2011 | |||||||
Deferred tax assets: |
||||||||
Organizational and start-up costs |
$ | 189 | $ | 208 | ||||
Allowance for loan losses |
1,322 | 1,081 | ||||||
Foreclosed assets |
10 | 38 | ||||||
Accrued other expenses |
83 | 61 | ||||||
Loan fees |
227 | 172 | ||||||
Other |
375 | 239 | ||||||
|
|
|
|
|||||
2,206 | 1,799 | |||||||
|
|
|
|
|||||
Deferred tax liabilities: |
||||||||
Mortgage servicing rights |
(903 | ) | (671 | ) | ||||
Premises and equipment |
(427 | ) | (408 | ) | ||||
Prepaid expenses |
(70 | ) | (51 | ) | ||||
Unrealized gain on securities |
(577 | ) | (965 | ) | ||||
Other |
(19 | ) | (14 | ) | ||||
|
|
|
|
|||||
(1,996 | ) | (2,109 | ) | |||||
|
|
|
|
|||||
Net deferred tax asset (liability) |
$ | 210 | $ | (310 | ) | |||
|
|
|
|
In assessing the future realization of deferred tax assets, management considers whether it is more likely than not that some portion or all of the deferred tax assets will not be realized. The ultimate realization of deferred tax assets is dependent upon the generation of future taxable income during the periods in which those temporary differences become deductible. Management considers amount paid-in available carryback years, the scheduled reversal for deferred tax assets and liabilities, and projected future taxable income. During 2011, Management made the determination that it is more likely than not that the Bank will realize the benefit of these deductible differences. Therefore, the valuation allowance was reversed during 2011.
The Company does not have any uncertain tax positions and does not have any interest and penalties recorded in the income statement for the years ended December 31, 2012 and 2011. The Company and its subsidiaries are subject to U.S. federal income tax as well as income tax of the state of Tennessee. The Company is no longer subject to examination by taxing authorities for years before 2009.
NOTE 11 - RELATED PARTY TRANSACTIONS
The Company enters into various credit arrangements with its executive officers, directors and their affiliates. These arrangements generally take the form of commercial lines of credit, personal lines of credit, mortgage loans, term loans or revolving arrangements secured by personal residences.
Loans to principal officers, directors, and their affiliates during 2012 were as follows:
Beginning balance |
$ | 8,345 | ||
New loans |
100 | |||
Effect of changes in composition of related parties |
| |||
Repayments |
(2,498 | ) | ||
|
|
|||
Ending balance |
$ | 5,947 | ||
|
|
F-26
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 11 - RELATED PARTY TRANSACTIONS (Continued)
Deposits from principal officers, directors, and their affiliates at year end 2012 and 2011 were $5,577 and $5,790.
The Company entered into a fifteen year lease agreement for a branch and administrative facility in downtown Franklin, Tennessee on May 7, 2010. Three of the Companys outside directors are involved in the lease arrangement. Another of the Companys outside directors was paid $375 and $53 for construction of leasehold improvements during 2012 and 2011. The Company also paid a company affiliated with an outside director $77 and $84 for the procurement of various insurance policies during the years ending December 31, 2012 and 2011. Rent expense attributable to the related party lease in 2012 and 2011, was $484 and $417, respectively. Rent commitments to related parties, before considering renewal options that generally are present, are disclosed in Notes.
NOTE 12 - SHARE-BASED PAYMENTS
In connection with the offering in 2007, the Companys original shareholders received as part of their initial investment 131,250 warrants, one for every twenty shares of common stock purchased. Each warrant allows the shareholders to purchase an additional share of common stock at $12.00 per share. The warrants were issued with an effective date of November 26, 2007 and will be exercisable in whole or in part up to five years following the date of issuance. In connection with the most recent offering which was completed during 2010, 32,425 warrants were issued to shareholders, one warrant for every twenty shares of common stock purchased. Each warrant allows the shareholders to purchase an additional share of common stock at $12.00 per share. The warrants were issued with an effective date of March 30, 2010 and will be exercisable in whole or in part up to seven years following the date of issuance. The warrants are detachable from the common stock. There were 54,958 warrants exercised during 2012, which the Company received cash proceeds of $660. The warrants exercised had an intrinsic value of $27 at exercise date. As of December 31, 2012, all remaining warrants issued in connection with the 2007 offering had expired.
Stock Option Plan : The Companys 2007 Stock Option Plan (stock option plan or the Plan), which is shareholder-approved, permits the grant of share options to its employees, organizers and directors for up to 551,250 shares of common stock. In April 2013, the 2007 Stock Option Plan was amended to increase the number of shares available for issuance under the Plan to 1,500,000. The Company believes that such awards better align the interests of its employees with those of its shareholders. Employee, organizer and director awards are generally granted with an exercise price equal to the market price of the Companys common stock at the date of grant; those option awards have a vesting period of 3 to 5 years and have a 10-year contractual term. The Company assigns discretion to its Board of Directors to make grants either as qualified incentive stock options or as non-qualified stock options. All employee grants are intended to be treated as qualified incentive stock options, if allowable. All other grants are expected to be treated as non-qualified.
During 2007, the Company granted 33,750 options to its organizers under the Plan. These options were granted in accordance with each organizers financial contribution to the Company during its organization period, and will vest over a five year period. No service element was included in the criteria used for determining grant awards. Accordingly, these options are not being expensed as stock-based compensation.
The fair value of each option award is estimated on the date of grant using a closed form option valuation (Black-Scholes) model that uses the assumptions noted in the table below. Expected stock price volatility is based on historical volatilities of a peer group. The Company uses historical data to estimate option exercise and post-vesting termination behavior.
F-27
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 12 - SHARE-BASED PAYMENTS (Continued)
The expected term of options granted represents the period of time that options granted are expected to be outstanding, which takes into account that the options are not transferable. The risk-free interest rate for the expected term of the option is based on the U.S. Treasury yield curve in effect at the time of the grant.
The fair value of options granted was determined using the following weighted-average assumptions as of grant date.
2012 | 2011 | |||||||
Risk-free interest rate |
0.93 | % | 3.00 | % | ||||
Expected term |
7 years | 7.5 years | ||||||
Expected stock price volatility |
12.35 | % | 15.00 | % | ||||
Dividend yield |
1.61 | % | 1.47 | % |
The weighted average fair value of options granted for the years ending December 31, 2012 and 2011 was $1.18 and $2.04, respectively.
A summary of the activity in the stock option plans for 2012 follows:
Shares |
Weighted
Average Exercise Price |
Weighted
Average Remaining Contractual Term |
Aggregate
Intrinsic Value |
|||||||||||||
Outstanding at beginning of year |
800,705 | $ | 10.54 | 7.56 | ||||||||||||
Granted |
244,312 | 12.00 | ||||||||||||||
Exercised |
| | ||||||||||||||
Forfeited or expired |
(40,638 | ) | 10.76 | |||||||||||||
|
|
|||||||||||||||
Outstanding at end of year |
1,004,379 | $ | 10.88 | 7.17 | $ | 2,127 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Vested or expected to vest |
954,160 | $ | 10.88 | 7.17 | $ | 2,020 | ||||||||||
Exercisable at end of year |
537,061 | $ | 10.49 | 6.04 | $ | 1,348 | ||||||||||
|
|
|
|
|
|
|
|
As of December 31, 2012, there was $733 of total unrecognized compensation cost related to nonvested stock options granted under the Plan. The cost is expected to be recognized over a weighted-average period of 2.2 years.
NOTE 13 - REGULATORY CAPITAL MATTERS
Banks are subject to regulatory capital requirements administered by federal banking agencies. Capital adequacy guidelines and, additionally for banks, prompt corrective action regulations, involve quantitative measures of assets, liabilities, and certain off-balance-sheet items calculated under regulatory accounting practices. Capital amounts and classifications are also subject to qualitative judgments by regulators. Failure to meet capital requirements can initiate regulatory action. Management believes as of December 31, 2012 and 2011, the Bank meets all capital adequacy requirements to which it is subject.
F-28
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 13 - REGULATORY CAPITAL MATTERS (Continued)
Prompt corrective action regulations provide five classifications: well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized, and critically undercapitalized, although these terms are not used to represent overall financial condition. If adequately capitalized, regulatory approval is required to accept brokered deposits. If undercapitalized, capital distributions are limited, as is asset growth and expansion, and capital restoration plans are required. At year end 2012, the most recent regulatory notifications categorized the Bank as well capitalized under the regulatory framework for prompt corrective action. There are no conditions or events since that notification that management believes have changed the institutions category.
Actual and required capital amounts and ratios are presented below at year end 2012 and 2011 for the Bank.
Actual |
Required
For Capital Adequacy Purposes |
To Be Well
Capitalized Under Prompt Corrective Action Regulations |
||||||||||||||||||||||
Amount | Ratio | Amount | Ratio | Amount | Ratio | |||||||||||||||||||
2012 |
||||||||||||||||||||||||
Total Capital to risk-weighted assets |
$ | 53,138 | 15.45 | % | $ | 27,506 | 8.00 | % | $ | 34,382 | 10.00 | % | ||||||||||||
Tier 1 (Core) Capital to risk-weighted assets |
$ | 49,155 | 14.29 | % | $ | 13,753 | 4.00 | % | $ | 20,629 | 6.00 | % | ||||||||||||
Tier 1 (Core) Capital to average assets |
$ | 49,155 | 9.27 | % | $ | 20,870 | 4.00 | % | $ | 26,087 | 5.00 | % | ||||||||||||
2011 |
||||||||||||||||||||||||
Total Capital to risk-weighted assets |
$ | 46,704 | 17.59 | % | $ | 21,246 | 8.00 | % | $ | 26,557 | 10.00 | % | ||||||||||||
Tier 1 (Core) Capital to risk-weighted assets |
$ | 43,383 | 16.34 | % | $ | 10,623 | 4.00 | % | $ | 15,934 | 6.00 | % | ||||||||||||
Tier 1 (Core) Capital to average assets |
$ | 43,383 | 10.83 | % | $ | 16,027 | 4.00 | % | $ | 20,033 | 5.00 | % |
Dividend Restrictions : The Companys principal source of funds for dividend payments is dividends received from the Bank. The Bank has entered into an agreement with its regulators that prohibit payment of dividends without prior written approval from supervisory authorities.
NOTE 14 - MORTGAGE BANKING DERIVATIVES
Commitments to fund certain mortgage loans (interest rate locks) to be sold into the secondary market and forward commitments for the future delivery of mortgage loans to third party investors are considered derivatives. It is the Companys practice to enter into forward commitments for the future delivery of residential mortgage loans when interest rate lock commitments are entered into in order to economically hedge the effect of changes in interest rates resulting from its commitments to fund the loans. These mortgage banking derivatives are not designated in hedge relationships. At year-end 2012, the Company had approximately $41,000 of interest rate lock commitments and approximately $30,000 of forward commitments for the future delivery of residential mortgage loans. The fair value of these mortgage banking derivatives was reflected by a derivative asset of $612 and a derivative liability of $42. At year-end 2011, the Company had approximately $13,000 of interest rate lock commitments and approximately $5,000 of forward commitments for the future delivery of residential mortgage loans. The fair value of these mortgage banking derivatives was reflected by a derivative asset of $138 and a derivative asset of $4. Fair values were estimated based on changes in mortgage interest rates from the date of the commitments. Changes in the fair values of these mortgage-banking derivatives are included in net gains on sale of loans.
F-29
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 14 - MORTGAGE BANKING DERIVATIVES (Continued)
The net gains (losses) relating to free-standing derivative instruments used for risk management are summarized below:
2012 | 2011 | |||||||
Forward contracts related to mortgage loans held for sale |
$ | (46 | ) | $ | 4 | |||
Interest rate contracts for customers |
474 | 138 |
The following table reflects the amount and market value of mortgage banking derivatives included in the consolidated balance sheet as of December 31:
2012 | 2011 | |||||||||||||||
Notional
Amount |
Fair
Value |
Notional
Amount |
Fair
Value |
|||||||||||||
Interest rate contracts for customers |
$ | 40,939 | $ | 612 | $ | 13,326 | $ | 138 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Included in other assets (liabilities): |
||||||||||||||||
Interest rate lock commitments |
$ | 30,479 | $ | (42 | ) | $ | 4,750 | $ | 4 | |||||||
|
|
|
|
|
|
|
|
NOTE 15 - LOAN COMMITMENTS AND OTHER RELATED ACTIVITIES
Some financial instruments, such as loan commitments, credit lines, letters of credit, and overdraft protection, are issued to meet customer financing needs. These are agreements to provide credit or to support the credit of others, as long as conditions established in the contract are met, and usually have expiration dates. Commitments may expire without being used. Off-balance-sheet risk to credit loss exists up to the face amount of these instruments, although material losses are not anticipated. The same credit policies are used to make such commitments as are used for loans, including obtaining collateral at exercise of the commitment.
The contractual amounts of financial instruments with off-balance-sheet risk at year end were as follows:
2012 | 2011 | |||||||||||||||
Fixed
Rate |
Variable
Rate |
Fixed
Rate |
Variable
Rate |
|||||||||||||
Commitments to make loans |
$ | 40,198 | $ | 741 | $ | 12,559 | $ | 350 | ||||||||
Unused lines of credit |
30,692 | 48,835 | 14,317 | 40,037 | ||||||||||||
Standby letters of credit |
4,019 | 1,007 | 445 | 2,801 |
Commitments to make loans are generally made for periods of 90 days or less. The fixed rate loan commitments have interest rates ranging from 2.38% to 4.75% and maturities ranging from 10 years to 30 years.
F-30
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE
Fair value is the exchange price that would be received for an asset or paid to transfer a liability (exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. There are three levels of inputs that may be used to measure fair values:
Level 1: Quoted prices (unadjusted) for identical assets or liabilities in active markets that the entity has the ability to access as of the measurement date.
Level 2: Significant other observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data.
Level 3: Significant unobservable inputs that reflect a reporting entitys own assumptions about the assumptions that market participants would use in pricing an asset or liability.
The Company used the following methods and significant assumptions to estimate the fair value of each type of asset and liability:
Securities : The fair values for securities are determined by quoted market prices, if available (Level 1). For securities where quoted prices are not available, fair values are calculated based on matrix pricing, which is a mathematical technique widely used in the industry to value debt securities without relying exclusively on quoted prices for the specific securities but rather by relying on the securities relationship to other benchmark quoted securities (Level 2).
Derivatives : The fair values of derivatives are based on valuation models using observable market data as of the measurement date (Level 2).
Impaired Loans : The fair value of impaired loans with specific allocations of the allowance for loan losses is generally based on recent real estate appraisals. These appraisals may utilize a single valuation approach or a combination of approaches including comparable sales and the income approach. Adjustments are routinely made in the appraisal process by the independent appraisers to adjust for differences between the comparable sales and income data available. Such adjustments are usually significant and typically result in a Level 3 classification of the inputs for determining fair value. Non-real estate collateral may be valued using an appraisal, net book value per the borrowers financial statements, or aging reports, adjusted or discounted based on managements historical knowledge, changes in market conditions from the time of the valuation, and managements expertise and knowledge of the client and clients business, resulting in a Level 3 fair value classification. Impaired loans are evaluated on a quarterly basis for additional impairment and adjusted accordingly.
Foreclosed Assets : Assets acquired through or instead of loan foreclosure are initially recorded at fair value less costs to sell when acquired, establishing a new cost basis. These assets are subsequently accounted for at lower of cost or fair value less estimated costs to sell. Fair value is commonly based on recent real estate appraisals which are updated no less frequently than annually. These appraisals may utilize a single valuation approach or a combination of approaches including comparable sales and the income approach. Adjustments are routinely made in the appraisal process by the independent appraisers to adjust for differences between the comparable sales and income data available. Such adjustments are usually significant and typically result in a Level 3 classification of the inputs for determining fair value. Foreclosed assets are evaluated on a quarterly basis for additional impairment and adjusted accordingly.
F-31
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE (Continued)
Loans Held For Sale: Loans held for sale are carried at the lower of cost or fair value, as determined by outstanding commitments, from third party investors (Level 2).
Assets and liabilities measured at fair value on a recurring basis, including financial assets and liabilities for which the Company has elected the fair value option, are summarized below:
Fair Value Measurements at
December 31, 2012 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Financial Assets |
||||||||||||
Securities available for sale |
||||||||||||
U.S. government-sponsored entities and agencies |
$ | | $ | 4,022 | $ | | ||||||
U.S. Treasury securities |
| 8,000 | | |||||||||
Mortgage-backed securities - residential |
| 171,433 | | |||||||||
State and political subdivision |
| 2,663 | | |||||||||
|
|
|
|
|
|
|||||||
Total securities available for sale |
$ | | $ | 186,118 | $ | | ||||||
|
|
|
|
|
|
|||||||
Mortgage banking derivatives - interest rate locks |
$ | | $ | 612 | $ | | ||||||
|
|
|
|
|
|
|||||||
Financial Liabilities |
||||||||||||
Mortgage banking derivatives - forward sales commitments |
$ | | $ | 42 | $ | | ||||||
|
|
|
|
|
|
Fair Value Measurements
at December 31, 2011 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Financial Assets |
||||||||||||
Securities available for sale |
||||||||||||
U.S. government-sponsored entities and agencies |
$ | | $ | 1,001 | $ | | ||||||
U.S. Treasury securities |
| 5,000 | | |||||||||
Mortgage-backed securities - residential |
| 180,672 | | |||||||||
|
|
|
|
|
|
|||||||
Total securities available for sale |
$ | | $ | 186,673 | $ | | ||||||
|
|
|
|
|
|
|||||||
Mortgage banking derivatives - interest rate locks |
$ | | $ | 138 | $ | | ||||||
|
|
|
|
|
|
|||||||
Mortgage banking derivatives - forward sales commitments |
$ | | $ | 4 | $ | | ||||||
|
|
|
|
|
|
|||||||
Financial Liabilities |
||||||||||||
None |
There were no transfers between level 1 and 2 during 2012 and 2011.
F-32
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE (Continued)
Assets measured at fair value on a non-recurring basis are summarized below:
Fair Value Measurements at
December 31, 2012 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Impaired loans with specific allocations |
||||||||||||
Real estate: |
||||||||||||
Residential |
$ | | $ | | $ | 1,133 | ||||||
Commercial |
| | 1,000 | |||||||||
Construction and land development |
| | 35 | |||||||||
Foreclosed assets |
||||||||||||
Real estate: residential |
| | 399 |
Fair Value Measurements at
December 31, 2011 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Impaired loans with specific allocations |
||||||||||||
Real estate: |
||||||||||||
Residential |
$ | | $ | | $ | 3,012 | ||||||
Commercial |
| | 1,375 | |||||||||
Construction and land development |
| | 50 | |||||||||
Foreclosed assets |
||||||||||||
Real estate: residential |
| | 319 |
Impaired loans with specific allocations, which are measured for impairment using the fair value of the collateral for collateral dependent loans, had a carrying amount of $2,168, with a valuation allowance of $509 at December 31, 2012, resulting in no additional provision for loan losses for the year ending December 31, 2012. At December 31, 2011, impaired loans had a carrying amount of $4,437, with a valuation allowance of $966, resulting in an additional provision for loan losses of $420 for the year ending December 31, 2011.
Foreclosed assets measured at fair value less costs to sell, had a net carrying amount of $2,089 for the year ended December 31, 2012. Included in this amount were properties that were written down to fair value totaling $399, which is made up of the outstanding balance of $425, net of a valuation allowance of $26, resulting in a write-down of $26 for the year ending December 31, 2012. Foreclosed assets measured at fair value less costs to sell, had a net carrying amount of $744 for the year ended December 31, 2011. Included in this amount were properties that were written down to fair value totaling $319, which is made up of the outstanding balance of $483, net of a valuation allowance of $165, resulting in a write-down of $165 for the year ending December 31, 2011.
F-33
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE (Continued)
The following table presents quantitative information about recurring Level 3 fair value measurements at December 31, 2012:
Fair
Value |
Valuation
Technique(s) |
Unobservable Input(s) |
Range
(Weighted Average) |
|||||||
Impaired loans: |
||||||||||
Residential real estate |
$ | 1,133 | Sales comparison |
Adjustment for differences between comparable sales |
0%-9% (9%) | |||||
Commercial real estate |
$ | 1,000 | Sales comparison |
Adjustment for differences between comparable sales |
5%-16% (9%) | |||||
Construction and land development |
$ | 35 | Sales comparison |
Adjustment for differences between comparable sales |
0%-44% (44%) | |||||
Foreclosed assets: |
||||||||||
Real estate: residential |
$ | 399 | Sales comparison |
Adjustment for differences between comparable sales |
6%-10% (9%) |
The carrying amounts and estimated fair values of financial instruments, at December 31, 2012 and December 31, 2011 are as follows:
Carrying |
Fair Value Measurements at
December 31, 2012 Using: |
|||||||||||||||||||
Amount | Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||
Financial assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 24,977 | $ | 25,000 | $ | | $ | | $ | 25,000 | ||||||||||
Interest-bearing deposits in financial institutions |
100 | | 100 | | 100 | |||||||||||||||
Securities available for sale |
186,118 | | 186,100 | | 186,100 | |||||||||||||||
Securities held to maturity |
33,815 | | 34,500 | | 34,500 | |||||||||||||||
Loans held for sale |
15,355 | | 15,600 | | 15,600 | |||||||||||||||
Net loans |
295,500 | | | 298,300 | 298,300 | |||||||||||||||
Restricted equity securities |
2,258 | n/a | n/a | n/a | n/a | |||||||||||||||
Mortgage servicing rights |
2,401 | | 2,400 | | 2,400 | |||||||||||||||
Accrued interest receivable |
1,778 | | 800 | 1,000 | 1,800 | |||||||||||||||
Financial liabilities |
||||||||||||||||||||
Deposits |
$ | 514,643 | $ | 383,200 | $ | 128,700 | $ | | $ | 511,900 | ||||||||||
Federal funds purchased and repurchase agreements |
1,602 | | 1,600 | | 1,600 | |||||||||||||||
Federal Home Loan Bank advances |
8,000 | | 8,000 | | 8,000 | |||||||||||||||
Accrued interest payable |
308 | 12 | 288 | | 300 |
F-34
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE (Continued)
December 31, 2011 |
Carrying
Amount |
Fair Value | ||||||
Financial assets |
||||||||
Cash and cash equivalents |
$ | 23,310 | $ | 23,300 | ||||
Interest-bearing deposits in financial institutions |
200 | 200 | ||||||
Securities available for sale |
186,673 | 186,700 | ||||||
Securities held to maturity |
8,451 | 8,900 | ||||||
Loans held for sale |
5,565 | 5,600 | ||||||
Net loans |
226,222 | 227,500 | ||||||
Restricted equity securities |
1,902 | n/a | ||||||
Mortgage servicing rights |
2,329 | 2,300 | ||||||
Accrued interest receivable |
1,539 | 1,500 | ||||||
Financial liabilities |
||||||||
Deposits |
$ | 405,606 | $ | 407,000 | ||||
Federal funds purchased and repurchase agreements |
3,880 | 3,900 | ||||||
Federal Home Loan Bank advances |
6,500 | 6,500 | ||||||
Accrued interest payable |
366 | 400 |
The methods and assumptions not previously described used to estimate fair value are described as follows:
(a) Cash and Cash Equivalents: The carrying amounts of cash and short-term instruments approximate fair values and are classified as Level 1.
(b) Loans: Fair values of loans, excluding loans held for sale, are estimated as follows: For variable rate loans that reprice frequently and with no significant change in credit risk, fair values are based on carrying values resulting in a Level 3 classification. Fair values for other loans are estimated using discounted cash flow analyses, using interest rates currently being offered for loans with similar terms to borrowers of similar credit quality resulting in a Level 3 classification. Impaired loans are valued at the lower of cost or fair value as described previously. The methods utilized to estimate the fair value of loans do not necessarily represent an exit price.
The fair value of loans held for sale is estimated based upon binding contracts and quotes from third party investors resulting in a Level 2 classification.
(c) Restricted Equity Securities: It is not practical to determine the fair value of FHLB stock due to restrictions placed on its transferability.
(d) Mortgage Servicing Rights: Fair value of mortgage servicing rights is based on valuation models that calculate the present value of estimated net cash flows based on industry market data. The valuation model incorporates assumptions that market participants would use in estimating future net cash flows resulting in a Level 2 classification.
F-35
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 16 - FAIR VALUE (Continued)
(e) Deposits: The fair values disclosed for demand deposits (e.g., interest and non-interest checking, passbook savings, and certain types of money market accounts) are, by definition, equal to the amount payable on demand at the reporting date (i.e., their carrying amount) resulting in e a Level 1 classification. The carrying amounts of fixed-term money market accounts approximate their fair values at the reporting date resulting in either a Level 1 classification. Fair values for certificates of deposit are estimated using a discounted cash flows calculation that applies interest rates currently being offered on certificates to a schedule of aggregated expected monthly maturities on time deposits resulting in a Level 2 classification.
(f) Federal Funds Purchased and Repurchase Agreements: The carrying amounts of federal funds purchased, borrowings under repurchase agreements, and other short-term borrowings, generally maturing within ninety days, approximate their fair values resulting in a Level 2 classification.
(g) Federal Home Loan Bank Advances: The fair values of the Companys long-term borrowings are estimated using discounted cash flow analyses based on the current borrowing rates for similar types of borrowing arrangements resulting in a Level 2 classification.
(h) Accrued Interest Receivable/Payable: The carrying amounts of accrued interest approximate fair value resulting in a Level 1 or Level 2 classification based on the asset/liability that they are associated with.
(i) Off-balance Sheet Instruments: Fair values for off-balance sheet, credit-related financial instruments are based on fees currently charged to enter into similar agreements, taking into account the remaining terms of the agreements and the counterparties credit standing. The fair value of commitments is not material.
NOTE 17 - PREFERRED STOCK
On September 27, 2011, as part of the Small Business Lending Fund (SBLF), the Company entered into a Small Business Lending Fund Securities Purchase Agreement (SBLF Purchase Agreement) with the United States Department of the Treasury (Treasury). Under the SBLF Purchase Agreement, the Company issued 10,000 shares of preferred stock series A to the Treasury. The preferred stock series A shares qualify as Tier 1 capital and will pay quarterly dividends. The initial dividend is 3.96%. As of December 31, 2012, the dividend rate was 1%. The dividend rate can fluctuate between 1% and 5% during the next 8 quarters based on the growth in qualified small business loans. As of December 31, 2012 and 2011, the Company had dividends in arrears of $8 and $130, respectively.
F-36
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 18 - PARENT COMPANY ONLY CONDENSED FINANCIAL INFORMATION
Condensed financial information of Franklin Financial Network, Inc. follows:
CONDENSED BALANCE SHEETS,
December 31
2012 | 2011 | |||||||
ASSETS |
||||||||
Cash and cash equivalents |
$ | 706 | $ | 1,815 | ||||
Investment in banking subsidiaries |
50,320 | 45,274 | ||||||
Investment in and advances to other subsidiaries |
179 | 169 | ||||||
Other assets |
274 | 157 | ||||||
|
|
|
|
|||||
Total assets |
$ | 51,479 | $ | 47,415 | ||||
|
|
|
|
|||||
LIABILITIES AND EQUITY |
||||||||
Accrued expenses and other liabilities |
$ | 123 | $ | 36 | ||||
Shareholders equity |
51,356 | 47,379 | ||||||
|
|
|
|
|||||
Total liabilities and shareholders equity |
$ | 51,479 | $ | 47,415 | ||||
|
|
|
|
CONDENSED STATEMENTS OF INCOME AND COMPREHENSIVE INCOME
Years ended December 31
2012 | 2011 | |||||||
Other income |
$ | 170 | $ | 167 | ||||
Other expense |
610 | 521 | ||||||
|
|
|
|
|||||
Income before income tax and undistributed subsidiary income |
(440 | ) | (354 | ) | ||||
Income tax expense (benefit) |
(272 | ) | | |||||
Equity in undistributed subsidiary income |
4,308 | 2,508 | ||||||
|
|
|
|
|||||
Net income |
$ | 4,140 | $ | 2,154 | ||||
|
|
|
|
|||||
Other comprehensive income (loss), net of tax: |
||||||||
Unrealized gains/losses on securities: |
||||||||
Unrealized holding gain (loss) arising during the period |
(24 | ) | 2,643 | |||||
Reclassification adjustment for gains included in net income |
(991 | ) | (672 | ) | ||||
|
|
|
|
|||||
Net unrealized gains (losses) |
(1,015 | ) | 1,971 | |||||
Tax effect |
177 | (754 | ) | |||||
|
|
|
|
|||||
Total other comprehensive income (loss) |
(838 | ) | 1,217 | |||||
|
|
|
|
|||||
Comprehensive income |
$ | 3,302 | $ | 3,371 | ||||
|
|
|
|
F-37
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 18 - PARENT COMPANY ONLY CONDENSED FINANCIAL INFORMATION
CONDENSED STATEMENTS OF CASH FLOWS
Years ended December 31
2012 | 2011 | |||||||
Cash flows from operating activities |
||||||||
Net income |
$ | 4,140 | $ | 2,154 | ||||
Adjustments: |
||||||||
Equity in undistributed subsidiary income |
(4,308 | ) | (2,508 | ) | ||||
Stock-based compensation |
63 | 61 | ||||||
Compensation expense related to common stock issued to 401(k) plan |
11 | 10 | ||||||
Change in other assets |
(116 | ) | (152 | ) | ||||
Change in other liabilities |
87 | (9 | ) | |||||
|
|
|
|
|||||
Net cash from operating activities |
(123 | ) | (444 | ) | ||||
Cash flows from investing activities |
||||||||
Investments in subsidiaries |
(1,188 | ) | (8,940 | ) | ||||
|
|
|
|
|||||
Net cash from investing activities |
(1,188 | ) | (8,940 | ) | ||||
Cash flows from financing activities |
||||||||
Proceeds from exercise of common stock warrants |
660 | | ||||||
Proceeds from issuance of common stock, net |
| 1 | ||||||
Proceeds from issuance of preferred stock, net of offering costs |
| 9,994 | ||||||
Dividends paid on preferred stock |
(458 | ) | | |||||
|
|
|
|
|||||
Net cash from financing activities |
202 | 9,995 | ||||||
|
|
|
|
|||||
Net change in cash and cash equivalents |
(1,109 | ) | 611 | |||||
Beginning cash and cash equivalents |
1,815 | 1,204 | ||||||
|
|
|
|
|||||
Ending cash and cash equivalents |
$ | 706 | $ | 1,815 | ||||
|
|
|
|
|||||
Non-cash supplemental information: |
||||||||
Transfers from subsidiary stock based compensation expense to parent company only additional paid-in capital |
$ | 241 | $ | 272 |
F-38
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
December 31, 2012 and 2011
(Dollar amounts in thousands, except share and per share data)
NOTE 19 - EARNINGS PER SHARE
The factors used in the earnings per share computation follow:
2012 | 2011 | |||||||
Basic |
||||||||
Net income allocated to common shareholders |
$ | 3,682 | $ | 2,154 | ||||
|
|
|
|
|||||
Weighted average common shares outstanding |
3,560,959 | 3,536,058 | ||||||
Basic earnings per common share |
$ | 1.03 | $ | 0.61 | ||||
|
|
|
|
|||||
Diluted |
||||||||
Net income allocated to common shareholders |
$ | 3,682 | $ | 2,154 | ||||
|
|
|
|
|||||
Weighted average common shares outstanding for basic earnings per common share |
3,560,959 | 3,536,058 | ||||||
Add: Dilutive effects of assumed exercises of stock options |
63,181 | 9,642 | ||||||
|
|
|
|
|||||
Average shares and dilutive potential common shares |
3,624,140 | 3,545,700 | ||||||
|
|
|
|
|||||
Diluted earnings per common share |
$ | 1.02 | $ | 0.61 | ||||
|
|
|
|
Stock options and warrants for 513,623 and 857,630 shares of common stock were not considered in computing diluted earnings per common share for 2012 and 2011 because they were antidilutive.
NOTE 20 - SUBSEQUENT EVENT (Unaudited)
On November 21, 2013 Franklin Financial Network, Inc. entered into an Agreement and Plan of Reorganization and Bank Merger with MidSouth Bank, in which approximately 2.8 million shares of Company stock will be exchanged for 100% of MidSouth Banks common and preferred stock. The acquisition is subject to regulatory and shareholder approval for both companies.
Subsequent to December 31, 2012, the Company has declared and paid cash dividends on preferred shares totaling $108. These dividends were recorded, declared, and paid quarterly beginning in January 2013.
F-39
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED INTERIM FINANCIAL STATEMENTS
F-40
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED BALANCE SHEETS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
September 30,
2013 |
December 31,
2012 |
|||||||
ASSETS |
||||||||
Cash and due from financial institutions |
$ | 16,390 | $ | 24,977 | ||||
Federal funds sold |
| | ||||||
|
|
|
|
|||||
Cash and cash equivalents |
16,390 | 24,977 | ||||||
Interest-bearing deposits in financial institutions |
| 100 | ||||||
Securities available for sale |
188,092 | 186,118 | ||||||
Securities held to maturity (fair value 2013 - $48,230 and 2012 - $34,517) |
49,133 | 33,815 | ||||||
Loans held for sale |
9,518 | 15,355 | ||||||
Loans |
377,910 | 299,483 | ||||||
Allowance for loan losses |
(4,432 | ) | (3,983 | ) | ||||
|
|
|
|
|||||
Net loans |
373,478 | 295,500 | ||||||
|
|
|
|
|||||
Restricted equity securities, at cost |
2,922 | 2,258 | ||||||
Premises and equipment, net |
3,430 | 2,944 | ||||||
Accrued interest receivable |
2,049 | 1,778 | ||||||
Bank owned life insurance |
8,168 | 7,964 | ||||||
Foreclosed assets |
761 | 2,089 | ||||||
Servicing rights, net |
2,703 | 2,401 | ||||||
Mortgage banking derivative asset |
714 | 612 | ||||||
Goodwill |
157 | 157 | ||||||
Other assets |
2,390 | 1,694 | ||||||
|
|
|
|
|||||
Total assets |
$ | 659,905 | $ | 577,762 | ||||
|
|
|
|
|||||
LIABILITIES AND SHAREHOLDERS EQUITY |
||||||||
Deposits |
||||||||
Non-interest-bearing |
$ | 59,329 | $ | 48,089 | ||||
Interest-bearing |
464,345 | 466,554 | ||||||
|
|
|
|
|||||
Total deposits |
523,674 | 514,643 | ||||||
Federal funds purchased and repurchase agreements |
41,046 | 1,602 | ||||||
Federal Home Loan Bank advances |
28,000 | 8,000 | ||||||
Accrued interest payable |
251 | 308 | ||||||
Mortgage banking derivative liability |
345 | | ||||||
Other liabilities |
2,456 | 1,853 | ||||||
|
|
|
|
|||||
Total liabilities |
595,772 | 526,406 | ||||||
Shareholders equity |
||||||||
Senior non-cumulative preferred stock, no par value, $10,000 liquidation value: |
||||||||
Series A, 1,000,000 shares authorized; 10,000 shares issued at September 30, 2013 and December 31, 2012, respectively |
10,000 | 10,000 | ||||||
Common stock, no par value; 10,000,000 shares authorized; 4,669,123 and 3,621,154 issued at September 30, 2013 and December 31 2012, respectively |
49,429 | 36,792 | ||||||
Additional paid-in capital |
696 | 1,029 | ||||||
Retained earnings |
5,681 | 2,606 | ||||||
Accumulated other comprehensive income (loss) |
(1,673 | ) | 929 | |||||
|
|
|
|
|||||
Total shareholders equity |
64,133 | 51,356 | ||||||
|
|
|
|
|||||
Total liabilities and shareholders equity |
$ | 659,905 | $ | 577,762 | ||||
|
|
|
|
See accompanying notes to consolidated financial statements.
F-41
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF INCOME
Three and Nine Months Ended September 30, 2013 and 2012
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
Three Months Ended
September 30, |
Nine Months Ended
September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Interest income and dividends |
||||||||||||||||
Loans, including fees |
$ | 5,186 | $ | 4,252 | $ | 14,434 | $ | 11,704 | ||||||||
Securities: |
||||||||||||||||
Taxable |
1,128 | 708 | 3,036 | 2,946 | ||||||||||||
Tax-Exempt |
17 | 12 | 46 | 25 | ||||||||||||
Federal funds sold and other |
7 | 8 | 35 | 41 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
6,338 | 4,980 | 17,551 | 14,716 | |||||||||||||
Interest expense |
||||||||||||||||
Deposits |
874 | 976 | 2,733 | 2,950 | ||||||||||||
Federal funds purchased and repurchase agreements |
50 | 18 | 94 | 31 | ||||||||||||
Federal Home Loan Bank advances |
29 | 22 | 67 | 65 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
953 | 1,016 | 2,894 | 3,046 | |||||||||||||
Net interest income |
5,385 | 3,964 | 14,657 | 11,670 | ||||||||||||
Provision for loan losses |
225 | 307 | 457 | 1,316 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net interest income after provision for loan losses |
5,160 | 3,657 | 14,200 | 10,354 | ||||||||||||
Noninterest income |
||||||||||||||||
Service charges on deposit accounts |
12 | 11 | 39 | 35 | ||||||||||||
Other service charges and fees |
270 | 288 | 868 | 680 | ||||||||||||
Net gains on sale of loans |
714 | 1,857 | 3,611 | 3,850 | ||||||||||||
Loan servicing fees, net |
(19 | ) | (439 | ) | (317 | ) | (635 | ) | ||||||||
Gain on sale of securities |
| 337 | 78 | 798 | ||||||||||||
Other |
369 | 248 | 1,153 | 930 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total noninterest income |
1,346 | 2,302 | 5,432 | 5,658 | ||||||||||||
Noninterest expense |
||||||||||||||||
Salaries and employee benefits |
3,339 | 2,843 | 9,830 | 7,923 | ||||||||||||
Occupancy and equipment |
666 | 641 | 1,990 | 1,821 | ||||||||||||
FDIC assessment expense |
101 | 115 | 254 | 325 | ||||||||||||
Loss on sale and write down of foreclosed assets |
29 | | 250 | 30 | ||||||||||||
Marketing |
70 | 67 | 193 | 161 | ||||||||||||
Professional fees |
79 | 92 | 322 | 253 | ||||||||||||
Other |
587 | 550 | 1,690 | 1,506 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total noninterest expense |
4,871 | 4,308 | 14,529 | 12,019 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Income before income tax expense |
1,635 | 1,651 | 5,103 | 3,993 | ||||||||||||
Income tax expense |
625 | 639 | 1,945 | 1,399 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net income |
$ | 1,010 | $ | 1,012 | $ | 3,158 | $ | 2,594 | ||||||||
Dividends paid on Series A preferred stock |
(25 | ) | (73 | ) | (83 | ) | (410 | ) | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Net income available to common shareholders |
$ | 985 | $ | 939 | $ | 3,075 | $ | 2,184 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Earnings per share: |
||||||||||||||||
Basic |
$ | 0.27 | $ | 0.26 | $ | 0.84 | $ | 0.61 | ||||||||
Diluted |
0.26 | 0.26 | 0.82 | 0.61 |
See accompanying notes to consolidated financial statements.
F-42
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
Three and Nine Months Ended September 30, 2013 and 2012
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
Three Months Ended
September 30, |
Nine Months Ended
September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Net income |
$ | 1,010 | $ | 1,012 | $ | 3,158 | $ | 2,594 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive income (loss), net of tax: |
||||||||||||||||
Unrealized gains/losses on securities: |
||||||||||||||||
Unrealized holding gain (loss) arising during the period |
819 | 931 | (4,138 | ) | 1,251 | |||||||||||
Reclassification adjustment for gains included in net income |
| (337 | ) | (78 | ) | (798 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Net unrealized gains (losses) |
819 | 594 | (4,216 | ) | 453 | |||||||||||
Tax effect |
(313 | ) | (228 | ) | 1,614 | (384 | ) | |||||||||
|
|
|
|
|
|
|
|
|||||||||
Total other comprehensive income (loss) |
506 | 366 | (2,602 | ) | 69 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Comprehensive income |
$ | 1,516 | $ | 1,378 | $ | 556 | $ | 2,663 | ||||||||
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-43
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF CHANGES IN SHAREHOLDERS EQUITY
Nine Months Ended September 30, 2013 and 2012
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
Preferred
Stock |
Common
Stock |
Additional
Paid-In Capital |
Retained
Earnings (Accumulated Deficit) |
Accumulated
Other Comprehensive Income (loss) |
Total
Shareholders Equity |
|||||||||||||||||||
Balance at January 1, 2012 |
$ | 10,000 | $ | 35,963 | $ | 725 | $ | (1,076 | ) | $ | 1,767 | $ | 47,379 | |||||||||||
Exercise of common stock warrants, 2,488 shares |
| 30 | | | | 30 | ||||||||||||||||||
Dividends paid on Series A preferred stock |
| | | (410 | ) | | (410 | ) | ||||||||||||||||
Stock issued in conjunction with 401(k) employer match, 15,188 shares |
| 169 | | | | 169 | ||||||||||||||||||
Stock based compensation expense |
| | 222 | | | 222 | ||||||||||||||||||
Net income |
| | | 2,594 | | 2,594 | ||||||||||||||||||
Other comprehensive income |
| | | | 69 | 69 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at September 30, 2012 |
$ | 10,000 | $ | 36,162 | $ | 947 | $ | 1,108 | $ | 1,836 | $ | 50,053 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at January 1, 2013 |
$ | 10,000 | $ | 36,792 | $ | 1,029 | $ | 2,606 | $ | 929 | $ | 51,356 | ||||||||||||
Exercise of common stock warrants, 2,775 shares |
| 33 | | | | 33 | ||||||||||||||||||
Dividends paid on Series A preferred stock |
| | | (83 | ) | | (83 | ) | ||||||||||||||||
Stock issued in conjunction with 401(k) employer match, 17,596 shares |
| 229 | | | | 229 | ||||||||||||||||||
Stock based compensation expense |
| | 235 | | | 235 | ||||||||||||||||||
Exercise of common stock options, 5,755 shares |
| 58 | | | | 58 | ||||||||||||||||||
Issuance of common stock, net of stock offering costs of $601 |
| 11,865 | | | | 11,865 | ||||||||||||||||||
Compensation expense for estimated shares |
| 26 | | | | 26 | ||||||||||||||||||
Issuance of stock in conjunction with stock option exchange, 32,814 shares |
| 426 | (568 | ) | | | (142 | ) | ||||||||||||||||
Net income |
| | | 3,158 | | 3,158 | ||||||||||||||||||
Other comprehensive loss |
| | | | (2,602 | ) | (2,602 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance at September 30, 2013 |
$ | 10,000 | $ | 49,429 | $ | 696 | $ | 5,681 | $ | (1,673 | ) | $ | 64,133 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-44
FRANKLIN FINANCIAL NETWORK, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
Nine Months Ended September 30, 2013 and 2012
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
2013 | 2012 | |||||||
Cash flows from operating activities |
||||||||
Net income |
$ | 3,158 | $ | 2,594 | ||||
Adjustments to reconcile net income to net cash from operating activities |
||||||||
Depreciation and amortization on premises and equipment |
492 | 534 | ||||||
Net amortization of securities |
3,497 | 3,957 | ||||||
Amortization of mortgage servicing right asset |
991 | 851 | ||||||
Provision for impairment of servicing asset |
(90 | ) | 210 | |||||
Provision for loan losses |
457 | 1,316 | ||||||
Origination of loans held for sale |
(244,491 | ) | (145,011 | ) | ||||
Proceeds from sale of loans held for sale |
253,939 | 135,887 | ||||||
Net gain on sale of loans |
(3,611 | ) | (3,850 | ) | ||||
Gain on sale of available-for-sale securities |
(78 | ) | (798 | ) | ||||
Income from bank owned life insurance |
(204 | ) | (118 | ) | ||||
Loss on sale and write down of foreclosed assets |
250 | 30 | ||||||
Stock-based compensation |
261 | 222 | ||||||
Compensation expense related to common stock issued to 401(k) plan |
229 | 169 | ||||||
Net change in |
||||||||
Accrued interest receivable and other assets |
(688 | ) | (1,379 | ) | ||||
Accrued interest payable and other liabilities |
891 | 388 | ||||||
|
|
|
|
|||||
Net cash from operating activities |
15,003 | (4,998 | ) | |||||
Cash flows from investing activities |
||||||||
Available-for-sale securities: |
||||||||
Sales |
11,555 | 40,612 | ||||||
Purchases |
(88,211 | ) | (90,659 | ) | ||||
Maturities, prepayments and calls |
67,289 | 68,769 | ||||||
Held to maturity securities: |
||||||||
Purchases |
(19,656 | ) | (14,403 | ) | ||||
Maturities, prepayments and calls |
4,095 | 1,134 | ||||||
Net change in loans |
(79,196 | ) | (58,134 | ) | ||||
Purchase of restricted equity securities |
(664 | ) | (356 | ) | ||||
Proceeds from sale of foreclosed assets |
1,870 | 315 | ||||||
Purchases of premises and equipment, net |
(978 | ) | (829 | ) | ||||
Decrease in interest-bearing deposits in financial institutions |
100 | 100 | ||||||
|
|
|
|
|||||
Net cash from investing activities |
(103,796 | ) | (53,451 | ) | ||||
Cash flows from financing activities |
||||||||
Increase in deposits |
9,031 | 36,075 | ||||||
Increase in federal funds purchased and repurchase agreements |
39,444 | 3,058 | ||||||
Proceeds from Federal Home Loan Bank advances |
20,000 | 8,500 | ||||||
Proceeds from exercise of common stock warrants |
30 | 31 | ||||||
Proceeds from exercise of common stock options |
58 | | ||||||
Cash paid in conjunction with stock option exchange |
(142 | ) | | |||||
Proceeds from issuance of common stock, net of offering costs |
11,868 | | ||||||
Dividends paid on preferred stock |
(83 | ) | (410 | ) | ||||
|
|
|
|
|||||
Net cash from financing activities |
80,206 | 47,254 | ||||||
|
|
|
|
|||||
Net change in cash and cash equivalents |
(8,587 | ) | (11,195 | ) | ||||
Cash and cash equivalents at beginning of period |
24,977 | 23,310 | ||||||
|
|
|
|
|||||
Cash and cash equivalents at end of period |
$ | 16,390 | $ | 12,115 | ||||
|
|
|
|
|||||
Supplemental information: |
||||||||
Interest paid |
$ | 2,951 | $ | 3,091 | ||||
Income taxes paid |
1,944 | 1,755 | ||||||
Non-cash supplemental information: |
||||||||
Transfers from loans to foreclosed assets |
$ | 761 | $ | 1,865 | ||||
Transfer from available-for-sale securities to held-to-maturity securities |
| 1,276 | ||||||
Transfer from additional paid-in capital to common stock |
426 | |
See accompanying notes to consolidated financial statements.
F-45
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
Basis of Presentation : The accounting and reporting policies of the Company conform to U.S. generally accepted accounting principles and Article 10 of Regulation S-X. Certain information and footnote disclosures normally included in financial statements prepared in accordance with U.S. generally accepted accounting principles have been condensed or omitted. All adjustments which are, in the opinion of management, necessary for a fair presentation of the results for the periods reported have been included in the accompanying unaudited consolidated financial statements, and all such adjustments are of a normal recurring nature. It is suggested that these interim consolidated financial statements and notes be read in conjunction with the annual financial statements and notes included elsewhere in this Form S-4.
NOTE 2 - SECURITIES
The following table summarizes the amortized cost and fair value of the available-for-sale securities portfolio at September 30, 2013 and December 31, 2012 and the corresponding amounts of gross unrealized gains and losses recognized in accumulated other comprehensive income were as follows:
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Fair
Value |
|||||||||||||
September 30, 2013 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 8,719 | $ | | $ | (913 | ) | $ | 7,806 | |||||||
U.S. Treasury securities |
| | | | ||||||||||||
Mortgage-backed securities: residential |
179,394 | 1,599 | (3,396 | ) | 177,597 | |||||||||||
State and political subdivision |
2,690 | | (1 | ) | 2,689 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 190,803 | $ | 1,599 | $ | (4,310 | ) | $ | 188,092 | |||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2012 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 4,020 | $ | 7 | $ | (5 | ) | $ | 4,022 | |||||||
U.S. Treasury securities |
8,000 | | | 8,000 | ||||||||||||
Mortgage-backed securities: residential |
169,902 | 2,074 | (543 | ) | 171,433 | |||||||||||
State and political subdivision |
2,690 | | (27 | ) | 2,663 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 184,612 | $ | 2,081 | $ | (575 | ) | $ | 186,118 | |||||||
|
|
|
|
|
|
|
|
The amortized cost and fair value of the held to maturity securities portfolio at September 30, 2013 and December 31, 2012 and the corresponding amounts of gross unrecognized gains and losses were as follows:
Amortized
Cost |
Gross
Unrecognized Gains |
Gross
Unrecognized Losses |
Fair
Value |
|||||||||||||
September 30, 2013 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 3,728 | $ | 13 | $ | (307 | ) | $ | 3,434 | |||||||
Mortgage-backed securities: residential |
37,124 | 450 | (817 | ) | 36,757 | |||||||||||
State and political subdivision |
8,281 | 114 | (356 | ) | 8,039 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 49,133 | $ | 577 | $ | (1,480 | ) | $ | 48,230 | |||||||
|
|
|
|
|
|
|
|
|||||||||
December 31, 2012 |
||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 2,971 | $ | 30 | $ | | $ | 3,001 | ||||||||
Mortgage-backed securities: residential |
24,686 | 485 | (38 | ) | 25,133 | |||||||||||
State and political subdivision |
6,158 | 234 | (9 | ) | 6,383 | |||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | 33,815 | $ | 749 | $ | (47 | ) | $ | 34,517 | |||||||
|
|
|
|
|
|
|
|
F-46
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 2 - SECURITIES (Continued)
Sales of available-for-sale securities were as follows:
Three Months Ended September 30, |
Nine Months Ended September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Proceeds |
$ | | $ | 22,017 | $ | 11,555 | $ | 40,612 | ||||||||
Gross gains |
| 347 | 141 | 816 | ||||||||||||
Gross losses |
| (11 | ) | (63 | ) | (18 | ) |
The amortized cost and fair value of the investment securities portfolio are shown by contractual maturity. Securities not due at a single maturity date, primarily mortgage-backed securities, are shown separately.
September 30, 2013 | ||||||||
Amortized
Cost |
Fair
Value |
|||||||
Available for sale |
||||||||
Due in one year or less |
$ | 2,690 | $ | 2,689 | ||||
Beyond ten years |
8,719 | 7,806 | ||||||
Mortgage-backed securities: residential |
179,394 | 177,597 | ||||||
|
|
|
|
|||||
Total |
$ | 190,803 | $ | 188,092 | ||||
|
|
|
|
|||||
Held to maturity |
||||||||
One to five years |
$ | 981 | $ | 997 | ||||
Five to ten years |
1,612 | 1,631 | ||||||
Beyond ten years |
9,416 | 8,845 | ||||||
Mortgage-backed securities: residential |
37,124 | 36,757 | ||||||
|
|
|
|
|||||
Total |
$ | 49,133 | $ | 48,230 | ||||
|
|
|
|
Securities pledged at September 30, 2013 and December 31, 2012 had a carrying amount of $192,548 and $154,221 and were pledged to secure public deposits and repurchase agreements.
At September 30, 2013 and December 31, 2012, there were no holdings of securities of any one issuer, other than the U.S. government-sponsored entities and agencies, in an amount greater than 10% of shareholders equity.
F-47
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 2 - SECURITIES (Continued)
The following table summarizes the securities with unrealized losses at September 30, 2013 and December 31, 2012 aggregated by major security type and length of time in a continuous unrealized loss position:
Less Than 12 Months | 12 Months or Longer | Total | ||||||||||||||||||||||
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
|||||||||||||||||||
September 30, 2013 |
||||||||||||||||||||||||
Available for sale |
||||||||||||||||||||||||
Mortgage-backed securities: residential |
$ | 86,810 | $ | (3,230 | ) | $ | 7,640 | $ | (166 | ) | $ | 94,450 | $ | (3,396 | ) | |||||||||
U.S. government sponsored entities and agencies |
7,806 | (913 | ) | | | 7,806 | (913 | ) | ||||||||||||||||
State and political subdivisions |
| | 2,689 | (1 | ) | 2,689 | (1 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total available for sale |
$ | 94,616 | $ | (4,143 | ) | $ | 10,329 | $ | (167 | ) | $ | 104,945 | $ | (4,310 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Held to maturity |
||||||||||||||||||||||||
Mortgage-backed securities: residential |
$ | 11,209 | $ | (589 | ) | $ | 4,148 | $ | (228 | ) | $ | 15,357 | $ | (817 | ) | |||||||||
U.S. government sponsored entities and agencies |
2,694 | (307 | ) | | | 2,694 | (307 | ) | ||||||||||||||||
State and political subdivisions |
4,840 | (282 | ) | 426 | (74 | ) | 5,266 | (356 | ) | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total held to maturity |
$ | 18,743 | $ | (1,178 | ) | $ | 4,574 | $ | (302 | ) | $ | 23,317 | $ | (1,480 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Less Than 12 Months | 12 Months or Longer | Total | ||||||||||||||||||||||
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
Fair
Value |
Unrealized
Losses |
|||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Available for sale |
||||||||||||||||||||||||
U.S. government-sponsored entities and agencies |
$ | 2,015 | $ | (5 | ) | $ | | $ | | $ | 2,015 | $ | (5 | ) | ||||||||||
Mortgage-backed securities: residential |
68,152 | (530 | ) | 1,392 | (13 | ) | 69,544 | (543 | ) | |||||||||||||||
State and political subdivisions |
2,663 | (27 | ) | | | 2,663 | (27 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total available for sale |
$ | 72,830 | $ | (562 | ) | $ | 1,392 | $ | (13 | ) | $ | 74,222 | $ | (575 | ) | |||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Held to maturity |
||||||||||||||||||||||||
Mortgage-backed securities: residential |
$ | 4,842 | $ | (38 | ) | $ | | $ | | $ | 4,842 | $ | (38 | ) | ||||||||||
State and political subdivisions |
2,842 | (9 | ) | | | 2,842 | (9 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total held to maturity |
$ | 7,684 | $ | (47 | ) | $ | | $ | | $ | 7,684 | $ | (47 | ) | ||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-48
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 2 - SECURITIES (Continued)
Unrealized losses on debt securities have not been recognized into income because the issuers bonds are of high credit quality (rated AA or higher), management does not intend to sell and it is likely that management will not be required to sell the securities prior to their anticipated recovery, and the decline in fair value is largely due to changes in interest rates and other market conditions. The fair value is expected to recover as the bonds approach maturity.
NOTE 3 - LOANS
Loans at September 30, 2013 and December 31, 2012 were as follows:
September 30,
2013 |
December 31,
2012 |
|||||||
Construction and land development |
$ | 102,278 | $ | 83,767 | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
95,161 | 68,042 | ||||||
Other |
13,687 | 9,640 | ||||||
Residential real estate: |
||||||||
Closed-end 1-4 family |
91,101 | 76,849 | ||||||
Other |
36,362 | 29,740 | ||||||
Commercial and industrial |
27,289 | 20,280 | ||||||
Consumer and other |
12,744 | 11,758 | ||||||
|
|
|
|
|||||
Subtotal |
378,622 | 300,076 | ||||||
Deferred loan fees, net |
(712 | ) | (593 | ) | ||||
Allowance for loan losses |
(4,432 | ) | (3,983 | ) | ||||
|
|
|
|
|||||
Net loans |
$ | 373,478 | $ | 295,500 | ||||
|
|
|
|
F-49
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
The following table presents the activity in the allowance for loan losses by portfolio segment for the nine month periods ending September 30, 2013 and 2012:
Construction
and Land Development |
Commercial
Real Estate |
Residential
Real Estate |
Commercial
and Industrial |
Consumer
and Other |
Total | |||||||||||||||||||
Nine Months Ending September 30, 2013 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Beginning balance |
$ | 1,342 | $ | 1,267 | $ | 893 | $ | 275 | $ | 206 | $ | 3,983 | ||||||||||||
Provision for loan losses |
216 | 47 | 119 | 131 | (56 | ) | 457 | |||||||||||||||||
Loans charged-off |
| | (107 | ) | | | (107 | ) | ||||||||||||||||
Recoveries |
| | 99 | | | 99 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,558 | $ | 1,314 | $ | 1,004 | $ | 406 | $ | 150 | $ | 4,432 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Nine Months Ending September 30, 2012 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Beginning balance |
$ | 928 | $ | 1,151 | $ | 1,043 | $ | 188 | $ | 103 | $ | 3,413 | ||||||||||||
Provision for loan losses |
225 | 662 | 327 | 135 | (33 | ) | 1,316 | |||||||||||||||||
Loans charged-off |
(25 | ) | (575 | ) | (443 | ) | | (7 | ) | (1,050 | ) | |||||||||||||
Recoveries |
58 | | 7 | | | 65 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,186 | $ | 1,238 | $ | 934 | $ | 323 | $ | 63 | $ | 3,744 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
The adequacy of the allowance for loan losses is assessed at the end of each calendar quarter. The level of the allowance is based upon evaluation of the loan portfolio, current asset quality trends, known and inherent risks in the portfolio, adverse situations that may affect the borrowers ability to repay (including the timing of future payment), the estimated value of any underlying collateral, composition of the loan portfolio, economic conditions, historical loss experience, industry and peer bank loan quality indications and other pertinent factors. The impact of the three months ended activity based allowance disclosures was not material to the Companys results of operating during three months ended September 30, 2013 and 2012.
F-50
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
The following table presents the balance in the allowance for loan losses and the recorded investment in loans by portfolio segment and based on impairment method as of September 30, 2013 and December 31, 2012. For purposes of this disclosure, recorded investment in loans excludes accrued interest receivable and loan fees, net due to immateriality.
Construction
and Land Development |
Commercial
Real Estate |
Residential
Real Estate |
Commercial
and Industrial |
Consumer
and Other |
Total | |||||||||||||||||||
September 30, 2013 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Ending allowance balance attributable to loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | | $ | 455 | $ | 93 | $ | 20 | $ | | $ | 568 | ||||||||||||
Collectively evaluated for impairment |
1,558 | 859 | 911 | 386 | 150 | 3,864 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,558 | $ | 1,314 | $ | 1,004 | $ | 406 | $ | 150 | $ | 4,432 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | | $ | 1,375 | $ | 1,262 | $ | 20 | $ | | $ | 2,657 | ||||||||||||
Collectively evaluated for impairment |
102,278 | 107,473 | 126,201 | 27,269 | 12,744 | 375,965 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending loans balance |
$ | 102,278 | $ | 108,848 | $ | 127,463 | $ | 27,289 | $ | 12,744 | $ | 378,622 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||
Ending allowance balance attributable to loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 41 | $ | 375 | $ | 93 | $ | | $ | | $ | 509 | ||||||||||||
Collectively evaluated for impairment |
1,301 | 892 | 800 | 275 | 206 | 3,474 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending allowance balance |
$ | 1,342 | $ | 1,267 | $ | 893 | $ | 275 | $ | 206 | $ | 3,983 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Loans: |
||||||||||||||||||||||||
Individually evaluated for impairment |
$ | 76 | $ | 1,375 | $ | 1,263 | $ | | $ | | $ | 2,714 | ||||||||||||
Collectively evaluated for impairment |
83,691 | 76,307 | 105,326 | 20,280 | 11,758 | 297,362 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Total ending loans balance |
$ | 83,767 | $ | 77,682 | $ | 106,589 | $ | 20,280 | $ | 11,758 | $ | 300,076 | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-51
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
The following table presents information related to impaired loans by class of loans as of September 30, 2013 and 2012:
Unpaid
Principal Balance |
Recorded
Investment |
Allowance for
Loan Losses Allocated |
||||||||||
September 30, 2013 |
||||||||||||
With no allowance recorded: |
||||||||||||
Residential real estate: |
||||||||||||
1-4 family |
$ | 36 | $ | 36 | $ | | ||||||
With an allowance recorded: |
||||||||||||
Construction and land development |
| | | |||||||||
Commercial real estate: |
||||||||||||
Nonfarm, nonresidential |
2,480 | 1,375 | 455 | |||||||||
Residential real estate: |
||||||||||||
1-4 family |
1,687 | 1,226 | 93 | |||||||||
Other |
| | | |||||||||
Commercial and industrial |
20 | 20 | 20 | |||||||||
|
|
|
|
|
|
|||||||
Subtotal |
4,187 | 2,621 | 568 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 4,223 | $ | 2,657 | $ | 568 | ||||||
|
|
|
|
|
|
|||||||
December 31, 2012 |
||||||||||||
With no allowance recorded: |
||||||||||||
Residential real estate: |
||||||||||||
1-4 family |
$ | 37 | $ | 37 | $ | | ||||||
Commercial & industrial |
| | | |||||||||
|
|
|
|
|
|
|||||||
Subtotal |
37 | 37 | | |||||||||
|
|
|
|
|
|
|||||||
With an allowance recorded: |
||||||||||||
Construction and land development |
76 | 76 | 41 | |||||||||
Commercial real estate: |
||||||||||||
Nonfarm, nonresidential |
2,480 | 1,375 | 375 | |||||||||
Residential real estate: |
||||||||||||
1-4 family |
1,687 | 1,226 | 93 | |||||||||
|
|
|
|
|
|
|||||||
Subtotal |
4,243 | 2,677 | 509 | |||||||||
|
|
|
|
|
|
|||||||
Total |
$ | 4,280 | $ | 2,714 | $ | 509 | ||||||
|
|
|
|
|
|
The impact on net interest income for these loans was not material to the Banks results of operating for the three and nine month periods ended September 30, 2013 and 2012.
F-52
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
The following table presents the average recorded investment of impaired loans by class of loans for the nine month periods ending September 30, 2013 and 2012:
Average Recorded Investment |
September 30, | |||||||
2013 | 2012 | |||||||
With no allowance recorded: |
||||||||
Residential real estate: |
||||||||
1-4 family |
$ | 37 | $ | 37 | ||||
Commercial & industrial |
| 30 | ||||||
|
|
|
|
|||||
Subtotal |
37 | 67 | ||||||
|
|
|
|
|||||
With an allowance recorded: |
||||||||
Construction and land development |
| 83 | ||||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
1,375 | 1,620 | ||||||
Residential real estate: |
||||||||
1-4 family |
| 1,286 | ||||||
Other |
| | ||||||
Commercial and industrial |
20 | | ||||||
|
|
|
|
|||||
Subtotal |
1,395 | 2,989 | ||||||
|
|
|
|
|||||
Total |
$ | 1,432 | $ | 3,056 | ||||
|
|
|
|
The following table presents the recorded investment in nonaccrual and loans past due over 90 days still on accrual by class of loans as of September 30, 2013 and December 31, 2012:
Nonaccrual |
Loans Past Due
Over 90 Days |
|||||||
September 30, 2013 |
||||||||
Construction and land development |
$ | | $ | | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
1,375 | | ||||||
Residential real estate: |
||||||||
1-4 family |
1,226 | | ||||||
Commercial and industrial |
20 | | ||||||
|
|
|
|
|||||
Total |
$ | 2,621 | $ | | ||||
|
|
|
|
|||||
December 31, 2012 |
||||||||
Construction and land development |
$ | 76 | $ | | ||||
Commercial real estate: |
||||||||
Nonfarm, nonresidential |
1,375 | | ||||||
Residential real estate: |
||||||||
1-4 family |
1,226 | | ||||||
|
|
|
|
|||||
Total |
$ | 2,677 | $ | | ||||
|
|
|
|
Nonaccrual loans and loans past due 90 days still on accrual include both smaller balance homogeneous loans that are collectively evaluated for impairment and individually classified impaired loans.
F-53
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
The following table presents the aging of the recorded investment in past due loans as of September 30, 2013 and December 31, 2012 by class of loans:
30-59
Days Past Due |
60-89
Days Past Due |
Greater
Than 89 Days Past Due |
Total
Past Due |
Loans
Not Past Due |
Total | |||||||||||||||||||
September 30, 2013 |
||||||||||||||||||||||||
Construction and land development |
$ | | $ | | $ | | $ | | $ | 102,278 | $ | 102,278 | ||||||||||||
Commercial real estate: |
||||||||||||||||||||||||
Nonfarm, nonresidential |
214 | | 1,375 | 1,589 | 93,572 | 95,161 | ||||||||||||||||||
Other |
| | | | 13,687 | 13,687 | ||||||||||||||||||
Residential real estate: |
||||||||||||||||||||||||
1-4 family |
| | 1,226 | 1,226 | 89,875 | 91,101 | ||||||||||||||||||
Other |
| | | | 36,362 | 36,362 | ||||||||||||||||||
Commercial and industrial |
20 | | | 20 | 27,269 | 27,289 | ||||||||||||||||||
Consumer and other |
1 | | | 1 | 12,743 | 12,744 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | 235 | $ | | $ | 2,601 | $ | 2,836 | $ | 375,786 | $ | 378,622 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
30-59
Days Past Due |
60-89
Days Past Due |
Greater
Than 89 Days Past Due |
Total
Past Due |
Loans
Not Past Due |
Total | |||||||||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Construction and land development |
$ | | $ | | $ | | $ | | $ | 83,767 | $ | 83,767 | ||||||||||||
Commercial real estate: |
||||||||||||||||||||||||
Nonfarm, nonresidential |
| | 1,375 | 1,375 | 66,667 | 68,042 | ||||||||||||||||||
Other |
| | | | 9,640 | 9,640 | ||||||||||||||||||
Residential real estate: |
||||||||||||||||||||||||
1-4 family |
| 37 | 1,226 | 1,263 | 75,586 | 76,849 | ||||||||||||||||||
Other |
| | | | 29,740 | 29,740 | ||||||||||||||||||
Commercial and industrial |
| | | | 20,280 | 20,280 | ||||||||||||||||||
Consumer and other |
| | | | 11,758 | 11,758 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
$ | | $ | 37 | $ | 2,601 | $ | 2,638 | $ | 297,438 | $ | 300,076 | |||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
Credit Quality Indicators: The Company categorizes loans into risk categories based on relevant information about the ability of borrowers to service their debt such as: current financial information, historical payment experience, credit documentation, public information, and current economic trends, among other factors. The Company analyzes loans individually by classifying the loans as to credit risk. This analysis includes non-homogeneous loans, such as commercial and commercial real estate loans as well as non-homogeneous residential real estate loans. This analysis is performed on a quarterly basis. The Company uses the following definitions for risk ratings:
Special Mention. Loans classified as special mention have a potential weakness that deserves managements close attention. If left uncorrected, these potential weaknesses may result in deterioration of the repayment prospects for the loan or of the institutions credit position at some future date.
F-54
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 3 - LOANS (Continued)
Substandard. Loans classified as substandard are inadequately protected by the current net worth and paying capacity of the obligor or of the collateral pledged, if any. Loans so classified have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the institution will sustain some loss if the deficiencies are not corrected.
Loans not meeting the criteria above that are analyzed individually as part of the above described process are considered to be pass-rated loans. Based on the most recent analysis performed, the risk category of loans by class of loans is as follows as of September 30, 2013 and December 31, 2012:
Pass |
Special
Mention |
Substandard | Total | |||||||||||||
September 30, 2013 |
||||||||||||||||
Construction and land development |
$ | 102,278 | $ | | $ | | $ | 102,278 | ||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
93,232 | | 1,929 | 95,161 | ||||||||||||
Other |
13,187 | | 500 | 13,687 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
89,309 | | 1,792 | 91,101 | ||||||||||||
Other |
35,778 | | 584 | 36,362 | ||||||||||||
Commercial and industrial |
27,269 | | 20 | 27,289 | ||||||||||||
Consumer and other |
12,744 | | | 12,744 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 373,797 | $ | | $ | 4,825 | $ | 378,622 | |||||||||
|
|
|
|
|
|
|
|
Pass |
Special
Mention |
Substandard | Total | |||||||||||||
December 31, 2012 |
||||||||||||||||
Construction and land development |
$ | 83,691 | $ | | $ | 76 | $ | 83,767 | ||||||||
Commercial real estate: |
||||||||||||||||
Nonfarm, nonresidential |
64,176 | 1,932 | 1,934 | 68,042 | ||||||||||||
Other |
9,140 | | 500 | 9,640 | ||||||||||||
Residential real estate: |
||||||||||||||||
1-4 family |
71,236 | 3,400 | 2,213 | 76,849 | ||||||||||||
Other |
29,141 | | 599 | 29,740 | ||||||||||||
Commercial and industrial |
20,000 | | 280 | 20,280 | ||||||||||||
Consumer and other |
11,758 | | | 11,758 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 289,142 | $ | 5,332 | $ | 5,602 | $ | 300,076 | |||||||||
|
|
|
|
|
|
|
|
NOTE 4 - LOAN SERVICING
Loans serviced for others are not reported as assets. The principal balances of these loans at September 30, 2013 and December 31, 2012 are as follows:
September 30,
2013 |
December 31,
2012 |
|||||||
Loan portfolios serviced for: |
||||||||
Federal Home Loan Mortgage Corporation |
$ | 336,620 | $ | 284,841 | ||||
Other |
5,173 | 2,139 |
F-55
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 4 - LOAN SERVICING (Continued)
The components of loan servicing fees, net for the three and nine month periods ending September 30, 2013 and 2012 were as follows:
Three Months Ended September 30, |
Nine Months Ended September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Loan servicing fees, net: |
||||||||||||||||
Loan servicing fees |
$ | 217 | $ | 148 | $ | 584 | $ | 426 | ||||||||
Amortization of loan servicing fees |
(326 | ) | (377 | ) | (991 | ) | (851 | ) | ||||||||
Impairment |
90 | (210 | ) | 90 | (210 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total |
$ | (19 | ) | $ | (439 | ) | $ | (317 | ) | $ | (635 | ) | ||||
|
|
|
|
|
|
|
|
The fair value of servicing rights was estimated by management to be approximately $3,536 at September 30, 2013. Fair value for 2013 was determined using a weighted average discount rate of 10.5% and a weighted average prepayment speed of 9.8%. At December 31, 2012, the fair value of servicing rights was estimated by management to be approximately $2,401. Fair value for 2012 was determined using weighted average discount rate of 10.5% and a weighted average prepayment speed of 13.6%.
The weighted average amortization period is 2.88 years. Estimated amortization expense for each of the next three years is:
2014 |
$ | 923 | ||
2015 |
923 | |||
2016 |
857 |
NOTE 5 - SHARE-BASED PAYMENTS
In connection with the offering in 2007, the Companys original shareholders received as part of their initial investment 131,250 warrants, one for every twenty shares of common stock purchased. Each warrant allows the shareholders to purchase an additional share of common stock at $12.00 per share. The warrants were issued with an effective date of November 26, 2007 and will be exercisable in whole or in part up to five years following the date of issuance. In connection with the most recent offering which was completed during 2010, 32,426 warrants were issued to shareholders, one warrant for every twenty shares of common stock purchased. Each warrant allows the shareholders to purchase an additional share of common stock at $12.00 per share. The warrants were issued with an effective date of March 30, 2010 and will be exercisable in whole or in part up to seven years following the date of issuance. The warrants are detachable from the common stock. There were 2,775 and 2,488 warrants exercised during nine months ended September 30, 2013 and 2012, respectively.
In the event the Common Stock of the Corporation is to be registered under the Act or is traded on a national securities exchange at $15.00 or more for forty-five (45) consecutive days, the Corporation may redeem the 2010 Warrants at any time thereafter with not less than thirty (30) days written notice to the holder of such 2010 Warrant, in whole or in part, at a redemption price of $1.00 per warrant; provided, however, that the holder of the 2010 Warrant may exercise the 2010 Warrant, in whole or in part, during such thirty (30) day period.
Stock Option Plan : The Companys 2007 Stock Option Plan (stock option plan or the Plan), which is shareholder-approved, permits the grant of share options to its employees, organizers and directors for up to 551,250 shares of common stock. In April, 2010, the 2007 Stock Option Plan was amended to increase the number of shares available for issuance under the Plan to 1,000,000. In April, 2013, the Plan was amended to offer additional forms of equity compensation, to change the Plans name to the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan, and to increase the number of authorized shares to 1,500,000. The Company believes that such awards better
F-56
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 5 - SHARE-BASED PAYMENTS (Continued)
align the interests of its employees with those of its shareholders. Employee, organizer and director awards are generally granted with an exercise price equal to the market price of the Companys common stock at the date of grant; those option awards have a vesting period of 3 to 5 years and have a 10-year contractual term. The Company assigns discretion to its Board of Directors to make grants either as qualified incentive stock options or as non-qualified stock options. All employee grants are intended to be treated as qualified incentive stock options, if allowable. All other grants are expected to be treated as non-qualified.
During 2007, the Company granted 33,750 options to its organizers under the Plan. These options were granted in accordance with each organizers financial contribution to the Company during its organization period, and will vest over a five year period. No service element was included in the criteria used for determining grant awards. Accordingly, these options are not being expensed as stock-based compensation.
During 2013, the Company granted employees the option to acquire common shares of the Company, plus a cash award, in exchange for existing vested options held by the employee. Options that were exchanged were surrendered and considered cancelled. As part of this exchange, a total of 166,448 options were cancelled in exchange for 32,814 shares of common stock and cash awards totaling $142.
The fair value of each option award is estimated on the date of grant using a closed form option valuation (Black-Scholes) model that uses the assumptions noted in the table below. Expected stock price volatility is based on historical volatilities of a peer group. The Company uses historical data to estimate option exercise and post-vesting termination behavior.
The expected term of options granted represents the period of time that options granted are expected to be outstanding, which takes into account that the options are not transferable. The risk-free interest rate for the expected term of the option is based on the U.S. Treasury yield curve in effect at the time of the grant.
The fair value of options granted was determined using the following weighted-average assumptions as of grant date.
September 30,
2013 |
September 30,
2012 |
|||||||
Risk-free interest rate |
1.65 | % | 0.93 | % | ||||
Expected term |
7.5 years | 7 years | ||||||
Expected stock price volatility |
12.63 | % | 12.35 | % | ||||
Dividend yield |
0.99 | % | 1.61 | % |
The weighted average fair value of options granted for nine months ended September 30, 2013 and 2012 were $1.92 and $1.18, respectively.
F-57
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 5 - SHARE-BASED PAYMENTS (Continued)
A summary of the activity in the stock option plans for nine months ended September 30, 2013 follows:
Shares |
Weighted
Average Exercise Price |
Weighted
Average Remaining Contractual Term |
Aggregate
Intrinsic Value |
|||||||||||||
Outstanding at beginning of year |
1,004,379 | $ | 10.88 | 7.17 | ||||||||||||
Granted |
124,119 | 13.00 | ||||||||||||||
Exercised |
(5,755 | ) | 10.05 | |||||||||||||
Forfeited, expired, or cancelled |
(176,099 | ) | 10.30 | |||||||||||||
|
|
|||||||||||||||
Outstanding at end of year |
946,644 | $ | 11.27 | 7.05 | $ | 1,635 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Vested or expected to vest |
899,312 | $ | 11.27 | 7.05 | $ | 1,553 | ||||||||||
Exercisable at end of year |
494,245 | $ | 10.77 | 5.83 | $ | 1,103 | ||||||||||
|
|
|
|
|
|
|
|
As of September 30, 2013, there was $691 of total unrecognized compensation cost related to nonvested stock options granted under the Plan. The cost is expected to be recognized over a weighted-average period of 2.2 years.
Restricted Share Award Plan : Additionally, the Companys 2007 Omnibus Equity Incentive Plan provides for the granting of restricted share awards and other performance related incentives. During the nine months ended September 30, 2013, the Company awarded 30,105 of restricted common shares to employees of the Company. When the restricted shares are awarded, a participant receives voting and dividend rights with respect to the shares, but is not able to transfer the shares until the restrictions have lapsed. These awards have a vesting period of 5 years and vest in equal annual installments on the anniversary date of the grant. There were no outstanding restricted shares as of December 31, 2012.
A summary of activity for nonvested restricted share awards for the nine months ended September 30, 2013 is as follows:
Nonvested Shares |
Shares |
Weighted-Average
Grant-Date Fair Value |
||||||
Nonvested at January 1, 2013 |
| $ | | |||||
Granted |
30,105 | 13.00 | ||||||
Vested |
| | ||||||
Forfeited |
| | ||||||
|
|
|||||||
Nonvested at September 30, 2013 |
30,105 | $ | 13.00 | |||||
|
|
Compensation expense associated with the restricted share awards is recognized on a straight-line basis over the time period that the restrictions associated with the awards lapse based on the total cost of the award at the grant date. As of September 30, 2013, there was $365 of total unrecognized compensation cost related to nonvested shares granted under the Plan. The cost is expected to be recognized over a weighted-average period of 4.7 years.
F-58
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 6 - REGULATORY CAPITAL MATTERS
Banks and bank holding companies are subject to regulatory capital requirements administered by federal banking agencies. Capital adequacy guidelines and, additionally for banks, prompt corrective action regulations, involve quantitative measures of assets, liabilities, and certain off-balance-sheet items calculated under regulatory accounting practices. Capital amounts and classifications are also subject to qualitative judgments by regulators. Failure to meet capital requirements can initiate regulatory action. Management believes as of September, 2013, the Company and Bank meet all capital adequacy requirements to which they are subject.
Prompt corrective action regulations provide five classifications: well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized, and critically undercapitalized, although these terms are not used to represent overall financial condition. If adequately capitalized, regulatory approval is required to accept brokered deposits. If undercapitalized, capital distributions are limited, as is asset growth and expansion, and capital restoration plans are required. At September 30, 2013, the most recent regulatory notifications categorized the Bank as well capitalized under the regulatory framework for prompt corrective action. There are no conditions or events since that notification that management believes have changed the institutions category.
Actual and required capital amounts and ratios are presented below at September 30, 2013 and December 31, 2012 for the Bank and at September 30, 2013 for the Company.
Actual |
Required
For Capital Adequacy Purposes |
To Be Well
Capitalized Under Prompt Corrective Action Regulations |
||||||||||||||||||||||
Amount | Ratio | Amount | Ratio | Amount | Ratio | |||||||||||||||||||
September 30, 2013 |
||||||||||||||||||||||||
Company Total Capital to risk weighted assets |
$ | 69,814 | 15.85 | % | $ | 35,232 | 8.00 | % | $ | 44,041 | 10.00 | % | ||||||||||||
Company Tier 1 (Core) Capital to risk-weighted assets |
$ | 65,382 | 14.85 | % | $ | 17,616 | 4.00 | % | $ | 26,424 | 6.00 | % | ||||||||||||
Company Tier 1 (Core) Capital to average assets |
$ | 65,382 | 10.26 | % | $ | 25,487 | 4.00 | % | $ | 31,859 | 5.00 | % | ||||||||||||
Bank Total Capital to risk weighted assets |
$ | 67,231 | 15.27 | % | $ | 35,216 | 8.00 | % | $ | 44,020 | 10.00 | % | ||||||||||||
Bank Tier 1 (Core) Capital to risk-weighted assets |
$ | 62,799 | 14.21 | % | $ | 17,608 | 4.00 | % | $ | 26,412 | 6.00 | % | ||||||||||||
Bank Tier 1 (Core) Capital to average assets |
$ | 62,799 | 9.85 | % | $ | 25,504 | 4.00 | % | $ | 31,880 | 5.00 | % | ||||||||||||
December 31, 2012 |
||||||||||||||||||||||||
Bank Total Capital to risk weighted assets |
$ | 53,138 | 15.45 | % | $ | 27,506 | 8.00 | % | $ | 34,382 | 10.00 | % | ||||||||||||
Bank Tier 1 (Core) Capital to risk-weighted assets |
$ | 49,155 | 14.29 | % | $ | 13,753 | 4.00 | % | $ | 20,629 | 6.00 | % | ||||||||||||
Tier 1 (Core) Capital to average assets |
$ | 49,155 | 9.27 | % | $ | 20,870 | 4.00 | % | $ | 26,087 | 5.00 | % |
Dividend Restrictions : The Companys principal source of funds for dividend payments is dividends received from the Bank. The Bank has entered into an agreement with its regulators that prohibit payment of dividends without prior written approval from supervisory authorities.
F-59
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE
Fair value is the exchange price that would be received for an asset or paid to transfer a liability (exit price) in the principal or most advantageous market for the asset or liability in an orderly transaction between market participants on the measurement date. There are three levels of inputs that may be used to measure fair values:
Level 1: Quoted prices (unadjusted) for identical assets or liabilities in active markets that the entity has the ability to access as of the measurement date.
Level 2: Significant other observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data.
Level 3: Significant unobservable inputs that reflect a reporting entitys own assumptions about the assumptions that market participants would use in pricing an asset or liability.
The Company used the following methods and significant assumptions to estimate the fair value of each type of asset and liability:
Securities : The fair values for investment securities are determined by quoted market prices, if available (Level 1). For securities where quoted prices are not available, fair values are calculated based on market prices of similar securities (Level 2). For securities where quoted prices or market prices of similar securities are not available, fair values are calculated using discounted cash flows or other market indicators (Level 3).
Derivatives : The fair values of derivatives are based on valuation models using observable market data as of the measurement date (Level 2).
Impaired Loans : The fair value of impaired loans with specific allocations of the allowance for loan losses is generally based on recent real estate appraisals. These appraisals may utilize a single valuation approach or a combination of approaches including comparable sales and the income approach. Adjustments are routinely made in the appraisal process by the independent appraisers to adjust for differences between the comparable sales and income data available. Such adjustments are usually significant and typically result in a Level 3 classification of the inputs for determining fair value. Non-real estate collateral may be valued using an appraisal, net book value per the borrowers financial statements, or aging reports, adjusted or discounted based on managements historical knowledge, changes in market conditions from the time of the valuation, and managements expertise and knowledge of the client and clients business, resulting in a Level 3 fair value classification. Impaired loans are evaluated on a quarterly basis for additional impairment and adjusted accordingly.
Foreclosed Assets : Assets acquired through or instead of loan foreclosure are initially recorded at fair value less costs to sell when acquired, establishing a new cost basis. These assets are subsequently accounted for at lower of cost or fair value less estimated costs to sell. Fair value is commonly based on recent real estate appraisals which are updated no less frequently than annually. These appraisals may utilize a single valuation approach or a combination of approaches including comparable sales and the income approach. Adjustments are routinely made in the appraisal process by the independent appraisers to adjust for differences between the comparable sales and income data available. Such adjustments are usually significant and typically result in a Level 3 classification of the inputs for determining fair value. Foreclosed assets are evaluated on a quarterly basis for additional impairment and adjusted accordingly.
Loans Held For Sale: Loans held for sale are carried at the lower of cost or fair value, as determined by outstanding commitments, from third party investors (Level 2).
F-60
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
Assets and liabilities measured at fair value on a recurring basis, including financial assets and liabilities for which the Company has elected the fair value option, are summarized below:
Fair Value Measurements at
September 30, 2013 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Financial Assets |
||||||||||||
Securities available for sale |
||||||||||||
U.S. government-sponsored entities and agencies |
$ | | $ | 7,806 | $ | | ||||||
U.S. Treasury securities |
| | | |||||||||
Mortgage-backed securities - residential |
| 177,597 | | |||||||||
State and political subdivisions |
| 2,689 | | |||||||||
|
|
|
|
|
|
|||||||
Total securities available for sale |
$ | | $ | 188,092 | $ | | ||||||
|
|
|
|
|
|
|||||||
Mortgage banking derivatives - interest rate locks |
$ | | $ | 714 | $ | | ||||||
|
|
|
|
|
|
|||||||
Financial Liabilities |
||||||||||||
Mortgage banking derivatives - forward sales commitments |
$ | | $ | 345 | $ | | ||||||
|
|
|
|
|
|
Fair Value Measurements at
December 31, 2012 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Financial Assets |
||||||||||||
Securities available for sale |
||||||||||||
U.S. government-sponsored entities and agencies |
$ | | $ | 4,022 | $ | | ||||||
U.S. Treasury securities |
| 8,000 | | |||||||||
Mortgage-backed securities - residential |
| 171,433 | | |||||||||
State and political subdivision |
| 2,663 | | |||||||||
|
|
|
|
|
|
|||||||
Total securities available for sale |
$ | | $ | 186,118 | $ | | ||||||
|
|
|
|
|
|
|||||||
Mortgage banking derivatives - interest rate locks |
$ | | $ | 612 | $ | | ||||||
|
|
|
|
|
|
|||||||
Financial Liabilities |
||||||||||||
Mortgage banking derivatives - forward sales commitments |
$ | | $ | 42 | $ | | ||||||
|
|
|
|
|
|
There were no transfers between level 1 and 2 during 2013 and 2013.
F-61
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
Assets measured at fair value on a non-recurring basis are summarized below:
Fair Value Measurements at
September 30, 2013 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Impaired loans with specific allocations |
||||||||||||
Real estate: |
||||||||||||
Residential |
$ | | $ | | $ | 1,133 | ||||||
Commercial |
| | 920 | |||||||||
Construction and land development |
| | | |||||||||
Foreclosed assets |
||||||||||||
Real estate: residential |
| | |
Fair Value Measurements at
December 31, 2012 Using: |
||||||||||||
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
||||||||||
Impaired loans with specific allocations |
||||||||||||
Real estate: |
||||||||||||
Residential |
$ | | $ | | $ | 1,133 | ||||||
Commercial |
| | 1,000 | |||||||||
Construction and land development |
| | 35 | |||||||||
Foreclosed assets |
||||||||||||
Real estate: residential |
| | 399 |
Impaired loans with specific allocations, which are measured for impairment using the fair value of the collateral for collateral dependent loans, had a carrying amount of $2,053, with a valuation allowance of $568 at September 30, 2013, resulting in $100 additional provision for loan losses for the three and nine month periods ending September 30, 2013. At December 31, 2012, impaired loans had a carrying amount of $2,168, with a valuation allowance of $509, resulting in no additional provision for loan losses for the three and nine month periods ending September 30, 2012.
Foreclosed assets measured at fair value less costs to sell, had a net carrying amount of $761 at September 30, 2013. Foreclosed assets measured at fair value less costs to sell, had a net carrying amount of $2,089 for the year ended December 31, 2012. Included in this amount were properties that were written down to fair value totaling $399, which is made up of the outstanding balance of $425, net of a valuation allowance of $26, resulting in a write-down of $26 for the nine month period ending September 30, 2012. There were no write-downs of foreclosed assets for the three-month period ending September 30, 2012.
F-62
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
The following table presents quantitative information about recurring Level 3 fair value measurements at September 30, 2013:
Fair Value |
Valuation
Technique(s) |
Unobservable Input(s) |
Range
(Weighted Average) |
|||||||||
Impaired loans: |
||||||||||||
Residential real estate |
$ | 1,133 | Sales comparison | Adjustment for differences between comparable sales | 0%-16% (16% | ) | ||||||
Commercial real estate |
$ | 920 | Sales comparison | Adjustment for differences between comparable sales | 3%-27% (16% | ) |
The following table presents quantitative information about recurring Level 3 fair value measurements at December 31, 2012:
Fair Value |
Valuation
Technique(s) |
Unobservable Input(s) |
Range
(Weighted Average) |
|||||||||
Impaired loans: |
||||||||||||
Residential real estate |
$ | 1,133 | Sales comparison | Adjustment for differences between comparable sales | 0%-9% (9% | ) | ||||||
Commercial real estate |
$ | 1,000 | Sales comparison | Adjustment for differences between comparable sales | 5%-16% (9% | ) | ||||||
Construction and land development |
$ | 35 | Sales comparison | Adjustment for differences between comparable sales | 0%-44% (44% | ) | ||||||
Foreclosed assets: |
||||||||||||
Real estate: residential |
$ | 399 | Sales comparison | Adjustment for differences between comparable sales | 6%-10% (9% | ) |
F-63
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
The carrying amounts and estimated fair values of financial instruments, at September 30, 2013 and December 31, 2012 are as follows:
Carrying |
Fair Value Measurements at
September 30, 2013 Using: |
|||||||||||||||||||
Amount | Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||
Financial assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 16,390 | $ | 16,400 | $ | | $ | | $ | 16,400 | ||||||||||
Interest-bearing deposits in financial institutions |
| | | | | |||||||||||||||
Securities available for sale |
188,092 | | 188,100 | | 188,100 | |||||||||||||||
Securities held to maturity |
49,133 | | 49,133 | | 49,100 | |||||||||||||||
Loans held for sale |
9,518 | | 9,500 | | 9,500 | |||||||||||||||
Net loans |
373,478 | | | 372,000 | 372,000 | |||||||||||||||
Restricted equity securities |
2,922 | n/a | n/a | n/a | n/a | |||||||||||||||
Mortgage servicing rights |
2,703 | | 3,500 | | 3,500 | |||||||||||||||
Accrued interest receivable |
2,049 | | 800 | 1,200 | 2,000 | |||||||||||||||
Financial liabilities |
||||||||||||||||||||
Deposits |
$ | 523,674 | $ | 341,200 | $ | 172,900 | $ | | $ | 514,100 | ||||||||||
Federal funds purchased and repurchase agreements |
39,597 | | 39,600 | | 39,600 | |||||||||||||||
Federal Home Loan Bank advances |
29,449 | | 29,400 | | 29,400 | |||||||||||||||
Accrued interest payable |
251 | 16 | 235 | | 251 |
Carrying |
Fair Value Measurements at
December 31, 2012 Using: |
|||||||||||||||||||
Amount | Level 1 | Level 2 | Level 3 | Total | ||||||||||||||||
Financial assets |
||||||||||||||||||||
Cash and cash equivalents |
$ | 24,977 | $ | 25,000 | $ | | $ | | $ | 25,000 | ||||||||||
Interest-bearing deposits in financial institutions |
100 | | 100 | | 100 | |||||||||||||||
Securities available for sale |
186,118 | | 186,100 | | 186,100 | |||||||||||||||
Securities held to maturity |
33,815 | | 34,500 | | 34,500 | |||||||||||||||
Loans held for sale |
15,355 | | 15,600 | | 15,600 | |||||||||||||||
Net loans |
295,500 | | 298,300 | 298,300 | ||||||||||||||||
Restricted equity securities |
2,258 | n/a | n/a | n/a | n/a | |||||||||||||||
Mortgage servicing rights |
2,401 | | 2,400 | | 2,400 | |||||||||||||||
Accrued interest receivable |
1,778 | | 800 | 1,000 | 1,800 | |||||||||||||||
Financial liabilities |
||||||||||||||||||||
Deposits |
$ | 514,643 | $ | 383,200 | $ | 128,700 | $ | | $ | 511,900 | ||||||||||
Federal funds purchased and repurchase agreements |
1,602 | | 1,600 | | 1,600 | |||||||||||||||
Federal Home Loan Bank advances |
8,000 | | 8,000 | | 8,000 | |||||||||||||||
Accrued interest payable |
308 | 20 | 280 | | 300 |
F-64
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
The methods and assumptions not previously described used to estimate fair value are described as follows:
(a) Cash and Cash Equivalents: The carrying amounts of cash and short-term instruments approximate fair values and are classified as either Level 1 or Level 2. <Entities may determine that cash on hand and non-interest due from bank accounts are Level 1 whereas interest-bearing due from bank accounts and fed funds sold are Level 2.>
(b) Loans: Fair values of loans, excluding loans held for sale, are estimated as follows: For variable rate loans that reprice frequently and with no significant change in credit risk, fair values are based on carrying values resulting in a Level 3 classification. Fair values for other loans are estimated using discounted cash flow analyses, using interest rates currently being offered for loans with similar terms to borrowers of similar credit quality resulting in a Level 3 classification. Impaired loans are valued at the lower of cost or fair value as described previously. The methods utilized to estimate the fair value of loans do not necessarily represent an exit price.
The fair value of loans held for sale is estimated based upon binding contracts and quotes from third party investors resulting in a Level 2 classification.
(c) Restricted Equity Securities: It is not practical to determine the fair value of FHLB stock due to restrictions placed on its transferability.
(d) Mortgage Servicing Rights: Fair value of mortgage servicing rights is based on valuation models that calculate the present value of estimated net cash flows based on industry market data. The valuation model incorporates assumptions that market participants would use in estimating future net cash flows resulting in a Level 2 classification.
(e) Deposits: The fair values disclosed for demand deposits (e.g., interest and non-interest checking, passbook savings, and certain types of money market accounts) are, by definition, equal to the amount payable on demand at the reporting date (i.e., their carrying amount) resulting in either a Level 1 or Level 2 classification <Entity to indicate Level as appropriate>. The carrying amounts of variable rate, fixed-term money market accounts and certificates of deposit approximate their fair values at the reporting date resulting in either a Level 1 or Level 2 classification <entity to indicate Level as appropriate>. Fair values for fixed rate certificates of deposit are estimated using a discounted cash flows calculation that applies interest rates currently being offered on certificates to a schedule of aggregated expected monthly maturities on time deposits resulting in a Level 2 classification.
(f) Federal Funds Purchased and Repurchase Agreements: The carrying amounts of federal funds purchased, borrowings under repurchase agreements, and other short-term borrowings, generally maturing within ninety days, approximate their fair values resulting in a Level 2 classification.
(g) Federal Home Loan Bank Advances: The fair values of the Companys long-term borrowings are estimated using discounted cash flow analyses based on the current borrowing rates for similar types of borrowing arrangements resulting in a Level 2 classification.
(h) Accrued Interest Receivable/Payable: The carrying amounts of accrued interest approximate fair value resulting in a Level X or Level Y classification< entities should consider the materiality of these balances when considering whether to disclose. If amounts are disclosed, the level disclosed should be consistent with the asset/liability they are associated with>.
F-65
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 7 - FAIR VALUE (Continued)
(i) Off-balance Sheet Instruments: Fair values for off-balance sheet, credit-related financial instruments are based on fees currently charged to enter into similar agreements, taking into account the remaining terms of the agreements and the counterparties credit standing. The fair value of commitments is not material.
NOTE 8 - EARNINGS PER SHARE
The two-class method is used in the calculation of basic and diluted earnings per share. Under the two-class method, earnings available to common shareholders for the period are allocated between common shareholders and participating securities according to dividends declared (or accumulated) and participation rights in undistributed earnings. The factors used in the earnings per share computation follow:
Three Months Ended
September 30, |
Nine Months Ended
September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Basic |
||||||||||||||||
Net income available to common shareholders |
$ | 985 | $ | 939 | $ | 3,075 | $ | 2,184 | ||||||||
Less: earnings allocated to participating securities |
(8 | ) | | (11 | ) | | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net income allocated to common shareholders |
$ | 977 | $ | 939 | $ | 3,064 | $ | 2,184 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Weighted average common shares outstanding including participating securities |
3,704,437 | 3,560,288 | 3,655,722 | 3,554,231 | ||||||||||||
Less: Participating securities |
(30,105 | ) | | (13,564 | ) | | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Average shares |
3,674,332 | 3,560,288 | 3,642,158 | 3,554,231 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Basic earnings per common share |
$ | 0.27 | $ | 0.26 | $ | 0.84 | $ | 0.61 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Diluted |
||||||||||||||||
Net income allocated to common shareholders |
$ | 977 | $ | 939 | $ | 3,064 | $ | 2,184 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Weighted average common shares outstanding for basic earnings per common share |
3,674,332 | 3,560,288 | 3,642,158 | 3,554,231 | ||||||||||||
Add: Dilutive effects of assumed exercises of stock options |
85,987 | 65,128 | 105,052 | 45,545 | ||||||||||||
Add: Dilutive effects of assumed exercises of stock warrants |
2,485 | | 2,490 | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Average shares and dilutive potential common shares |
3,762,804 | 3,625,416 | 3,749,700 | 3,599,776 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Diluted earnings per common share |
$ | 0.26 | $ | 0.26 | $ | 0.82 | $ | 0.61 | ||||||||
|
|
|
|
|
|
|
|
Stock options for 57,952 and 137,919 shares of common stock were not considered in computing diluted earnings per common share for the three and nine month periods ending September 30, 2013 and September 30, 2012, because they were antidilutive. Stock warrants for 163,675 shares of common stock were not considered in computing diluted earnings per common share for the nine months period ending September 30, 2012.
F-66
FRANKLIN FINANCIAL NETWORK, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Dollar amounts in thousands, except share and per share data)
(Unaudited)
NOTE 9 - CAPITAL OFFERING
The Company initiated a Private Placement stock offering in September, 2013. The offering was priced at $13.00 per share. The offering was completed during November, 2013. Shares issued as of September 30, 2013, were 958,924, and proceeds received totaled $11,865, net of offering costs of $601.
The proceeds of the offering were used primarily to provide the capital to Franklin Synergy Bank to support continued growth.
NOTE 10 - SUBSEQUENT EVENT
On November 21, 2013 Franklin Financial Network, Inc. entered into an Agreement and Plan of Reorganization and Bank Merger with MidSouth Bank, in which approximately 2.8 million shares of Company stock will be exchanged for 100% of MidSouth Banks common and preferred stock. The acquisition is subject to regulatory and shareholder approval for both companies.
Subsequent to September 30, 2013, the Company has declared and paid cash dividends on preferred shares totaling $50. These dividends were recorded, declared, and paid quarterly beginning in October 2013.
Subsequent to September 30, 2013, proceeds from the issuance of 194,923 shares in conjunction with the Companys September, 2013 Private Placement stock offering were received totaling $2,325, net of offering costs of $209.
F-67
MIDSOUTH BANK
CONSOLIDATED FINANCIAL STATEMENTS
DECEMBER 31, 2012, 2011 AND 2010
(with Independent Auditors Report Thereon)
F-68
MIDSOUTH BANK
Murfreesboro, Tennessee
Management Report on Internal Control Over Financial Reporting.
The management of MidSouth Bank (the Bank) is responsible for establishing and maintaining adequate internal control over financial reporting. The Banks internal control system was designed to provide reasonable assurance to MidSouth Banks management and board of directors regarding the preparation and fair presentation of published financial statements. All internal control systems, no matter how well designed, have inherent limitations; therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation.
MidSouth Banks management assessed the effectiveness of the Banks internal control over financial reporting as of December 31, 2012. In making this assessment, it used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control Integrated Framework. Based on our assessment we believe that, as of December 31, 2012, the Banks internal control over financial reporting is effective based on those criteria.
The Banks independent registered public accounting firm is not required to issue, and has not issued, any audit report on managements assessment of the Banks internal control over financial reporting.
|
|
|
Lee M. Moss Chairman & Chief Executive Officer |
Kevin D. Busbey Chief Financial Officer (Principal financial and principal accounting officer) |
F-69
Report of Independent Registered Public Accounting Firm
The Board of Directors and
Stockholders of MidSouth Bank
We have audited the accompanying consolidated balance sheets of MidSouth Bank and subsidiary as of December 31, 2012 and 2011, and the related consolidated statements of earnings, comprehensive earnings (losses), changes in stockholders equity and cash flows for each of the three years in the period ended December 31, 2012. These financial statements are the responsibility of the Banks management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board in the United States. Those standards require that we plan and perform the audits to obtain reasonable assurance about whether the financial statements are free of material misstatement. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the Companys internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of MidSouth Bank and subsidiary as of December 31, 2012 and 2011, and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2012, in conformity with accounting principles generally accepted in the United States of America.
/s/ MAGGART & ASSOCIATES, P.C. |
Nashville, Tennessee
March 18, 2013
F-70
MIDSOUTH BANK
December 31, 2012 and 2011
(In Thousands, Except Share Amounts) |
2012 | 2011 | ||||||
ASSETS |
||||||||
Loans, less allowance for loan losses of $3,088 and $3,283, respectively |
$ | 137,790 | $ | 137,143 | ||||
Securities available-for-sale, at market (amortized cost of $68,703 and $65,285, respectively) |
69,925 | 66,175 | ||||||
Loans held for sale |
2,841 | 1,308 | ||||||
Restricted equity securities |
1,550 | 1,501 | ||||||
Certificates of deposit at other financial institutions |
1,482 | | ||||||
Interest-bearing accounts at other financial institutions |
25,764 | 19,538 | ||||||
|
|
|
|
|||||
Total earning assets |
239,352 | 225,665 | ||||||
|
|
|
|
|||||
Cash and due from banks |
1,598 | 1,131 | ||||||
Bank premises and equipment, net |
8,865 | 8,811 | ||||||
Accrued interest receivable |
745 | 670 | ||||||
Foreclosed assets |
800 | 1,379 | ||||||
Other assets |
939 | 995 | ||||||
|
|
|
|
|||||
Total assets |
$ | 252,299 | $ | 238,651 | ||||
|
|
|
|
|||||
LIABILITIES AND STOCKHOLDERS EQUITY |
||||||||
Deposits |
$ | 221,752 | $ | 204,632 | ||||
Securities sold under agreement to repurchase |
1,044 | 6,552 | ||||||
Accrued interest payable |
52 | 70 | ||||||
Accounts payable and other liabilities |
783 | 705 | ||||||
|
|
|
|
|||||
Total liabilities |
223,631 | 211,959 | ||||||
|
|
|
|
|||||
COMMITMENTS AND CONTINGENCIES |
||||||||
Stockholders equity: |
||||||||
Preferred stock, par value $1 per share, authorized 20,000,000 shares, 1,265,078 and 1,265,078 shares issued and outstanding, respectively |
1,265 | 1,265 | ||||||
Common stock, par value $1 per share, authorized 20,000,000 shares, 3,855,577 and 3,848,280 shares issued and outstanding, respectively |
3,856 | 3,848 | ||||||
Additional paid-in capital |
39,825 | 39,790 | ||||||
Deficit |
(17,500 | ) | (19,101 | ) | ||||
Accumulated other comprehensive income |
1,222 | 890 | ||||||
|
|
|
|
|||||
Total stockholders equity |
28,668 | 26,692 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | 252,299 | $ | 238,651 | ||||
|
|
|
|
See accompanying notes to consolidated financial statements.
F-71
MIDSOUTH BANK
Consolidated Statements of Earnings
For the Three Years Ended December 31, 2012
(In Thousands, Except Per Share Amounts) |
2012 | 2011 | 2010 | |||||||||
Interest income: |
||||||||||||
Interest and fees on loans |
$ | 7,992 | $ | 8,518 | $ | 10,159 | ||||||
Interest and dividends on taxable securities |
1,462 | 1,456 | 1,177 | |||||||||
Interest and dividends on restricted equity securities |
80 | 75 | 70 | |||||||||
Interest on interest-bearing balances at other financial institutions |
40 | 32 | 27 | |||||||||
|
|
|
|
|
|
|||||||
Total interest income |
9,574 | 10,081 | 11,433 | |||||||||
|
|
|
|
|
|
|||||||
Interest expense: |
||||||||||||
Interest on negotiable order of withdrawal accounts |
62 | 65 | 92 | |||||||||
Interest on money market and other savings accounts |
223 | 237 | 296 | |||||||||
Interest on certificates of deposit |
939 | 1,304 | 2,258 | |||||||||
Interest on Fed funds purchased and securities sold under agreement to repurchase |
7 | 17 | 13 | |||||||||
Interest on advances from Federal Home Loan Bank |
| 17 | 53 | |||||||||
|
|
|
|
|
|
|||||||
Total interest expense |
1,231 | 1,640 | 2,712 | |||||||||
|
|
|
|
|
|
|||||||
Net interest income before provision for loan losses |
8,343 | 8,441 | 8,721 | |||||||||
Provision for loan losses |
(470 | ) | 400 | 1,130 | ||||||||
|
|
|
|
|
|
|||||||
Net interest income after provision for loan losses |
8,813 | 8,041 | 7,591 | |||||||||
Non-interest income |
2,251 | 1,962 | 2,306 | |||||||||
Non-interest expense |
9,463 | 8,941 | 9,186 | |||||||||
|
|
|
|
|
|
|||||||
Earnings before income taxes |
1,601 | 1,062 | 711 | |||||||||
Income taxes |
| | | |||||||||
|
|
|
|
|
|
|||||||
Earnings |
$ | 1,601 | $ | 1,062 | $ | 711 | ||||||
|
|
|
|
|
|
|||||||
Basic earnings per common share |
$ | 0.42 | $ | 0.28 | $ | 0.19 | ||||||
|
|
|
|
|
|
|||||||
Diluted earnings per common share |
$ | 0.24 | $ | 0.17 | $ | 0.13 | ||||||
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-72
MIDSOUTH BANK
Consolidated Statements of Comprehensive Earnings
For the Three Years Ended December 31, 2012
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Net earnings |
$ | 1,601 | $ | 1,062 | $ | 711 | ||||||
Other comprehensive earnings (losses): |
||||||||||||
Unrealized gains on available-for-sale securities arising during period |
343 | 1,033 | 376 | |||||||||
Less: Reclassification adjustment for gains included in net earnings |
(11 | ) | (144 | ) | (511 | ) | ||||||
|
|
|
|
|
|
|||||||
Other comprehensive earnings (losses) |
332 | 889 | (135 | ) | ||||||||
|
|
|
|
|
|
|||||||
Comprehensive earnings |
$ | 1,933 | $ | 1,951 | $ | 576 | ||||||
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-73
MIDSOUTH BANK
Consolidated Statements of Changes in Stockholders Equity
For the Three Years Ended December 31, 2012
(In Thousands) |
Preferred
Stock |
Common
Stock |
Additional
Paid-In Capital |
Deficit |
Accumulated
Other Comprehensive Income |
Total | ||||||||||||||||||
Balance December 31, 2009 |
$ | 415 | $ | 3,842 | $ | 36,332 | $ | (20,874 | ) | $ | 136 | $ | 19,851 | |||||||||||
Issuance of 1,380 shares from exercise of detachable warrants |
| 1 | 3 | | | 4 | ||||||||||||||||||
Issuance of 609,538 shares from sales of Series 2009A Preferred Stock |
610 | | 2,346 | | | 2,956 | ||||||||||||||||||
Stock-based compensation expense |
| | 16 | | | 16 | ||||||||||||||||||
Net change in unrealized gains on available-for-sale securities during the year |
| | | | (135 | ) | (135 | ) | ||||||||||||||||
Earnings for the period |
| | | 711 | | 711 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance December 31, 2010 |
1,025 | 3,843 | 38,697 | (20,163 | ) | 1 | 23,403 | |||||||||||||||||
Issuance of 965 shares from exercise of detachable warrants |
| 1 | 1 | | | 2 | ||||||||||||||||||
Issuance of 242,350 shares from sales of Series 2011-A Preferred Stock |
242 | | 1,083 | | | 1,325 | ||||||||||||||||||
Conversion of 2,000 shares of Series 2009A Preferred Stock to 4,000 shares of common stock |
(2 | ) | 4 | (2 | ) | | | | ||||||||||||||||
Stock-based compensation expense |
| | 11 | | | 11 | ||||||||||||||||||
Net change in unrealized gains on available-for-sale securities during the year |
| | | | 889 | 889 | ||||||||||||||||||
Earnings for the period |
| | | 1,062 | | 1,062 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance December 31, 2011 |
1,265 | 3,848 | 39,790 | (19,101 | ) | 890 | 26,692 | |||||||||||||||||
Issuance of 7,297 shares from exercise of detachable warrants |
| 8 | 16 | | | 24 | ||||||||||||||||||
Stock-based compensation expense |
| | 19 | | | 19 | ||||||||||||||||||
Net change in unrealized gains on available-for-sale securities during the year |
| | | | 332 | 332 | ||||||||||||||||||
Earnings for the period |
| | | 1,601 | | 1,601 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Balance December 31, 2012 |
$ | 1,265 | $ | 3,856 | $ | 39,825 | $ | (17,500 | ) | $ | 1,222 | $ | 28,668 | |||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-74
MIDSOUTH BANK
Consolidated Statements of Cash Flows
For the Three Years Ended December 31, 2012
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Cash flows from operating activities: |
||||||||||||
Interest received |
$ | 10,650 | $ | 10,566 | $ | 11,719 | ||||||
Fees received |
1,598 | 1,496 | 1,412 | |||||||||
Proceeds from sale of loans |
30,676 | 22,032 | 25,157 | |||||||||
Origination of loans held for sale |
(31,567 | ) | (20,617 | ) | (26,615 | ) | ||||||
Interest paid |
(1,249 | ) | (1,700 | ) | (2,820 | ) | ||||||
Cash paid to suppliers and employees |
(8,434 | ) | (7,152 | ) | (7,252 | ) | ||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
1,674 | 4,625 | 1,601 | |||||||||
|
|
|
|
|
|
|||||||
Cash flows from investing activities: |
||||||||||||
Purchase of available-for-sale securities |
(26,353 | ) | (35,894 | ) | (72,571 | ) | ||||||
Repayments of mortgage-backed securities |
15,239 | 9,546 | 5,986 | |||||||||
Purchase of restricted equity securities |
(49 | ) | (90 | ) | (125 | ) | ||||||
Proceeds from sales of available-for-sale securities |
4,556 | 13,761 | 29,091 | |||||||||
Proceeds from sale of restricted equity securities |
| 18 | 13 | |||||||||
Maturities of available-for-sale securities |
2,000 | | 6,420 | |||||||||
Net increases in certificates of deposit at other financial institutions |
(1,482 | ) | | | ||||||||
Loans made to customers, net of repayments |
(512 | ) | 15,165 | 33,136 | ||||||||
Proceeds from sales of premises and equipment |
| | 4 | |||||||||
Purchases of premises and equipment |
(540 | ) | (504 | ) | (81 | ) | ||||||
Capitalized costs related to foreclosed assets |
(62 | ) | | | ||||||||
Proceeds from insurance claims |
38 | | | |||||||||
Proceeds from sales of foreclosed assets |
548 | 302 | 1,271 | |||||||||
|
|
|
|
|
|
|||||||
Net cash (used in) provided by investing activities |
(6,617 | ) | 2,304 | 3,144 | ||||||||
|
|
|
|
|
|
|||||||
Cash flows from financing activities: |
||||||||||||
Net increase in non-interest-bearing, savings and NOW deposit accounts |
23,022 | 10,509 | 7,184 | |||||||||
Net decrease in time deposits |
(5,902 | ) | (10,767 | ) | (26,530 | ) | ||||||
Repayments of advances from the Federal Home Loan Bank |
| (941 | ) | (659 | ) | |||||||
(Decrease) increase in securities sold under agreement to repurchase |
(5,508 | ) | 2,493 | 1,482 | ||||||||
Proceeds from sale of common stock |
24 | 2 | 4 | |||||||||
Proceeds from sale of preferred stock |
| 1,325 | 2,956 | |||||||||
|
|
|
|
|
|
|||||||
Net cash provided by (used in) financing activities |
11,636 | 2,621 | (15,563 | ) | ||||||||
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-75
MIDSOUTH BANK
Consolidated Statements of Cash Flows, Continued
For the Three Years Ended December 31, 2012
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Net increase (decrease) in cash and cash equivalents |
6,693 | 9,550 | (10,818 | ) | ||||||||
Cash and cash equivalents at beginning of year |
20,669 | 11,119 | 21,937 | |||||||||
|
|
|
|
|
|
|||||||
Cash and cash equivalents at end of year |
$ | 27,362 | $ | 20,669 | $ | 11,119 | ||||||
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-76
MIDSOUTH BANK
Consolidated Statements of Cash Flows, Continued
For the Three Years Ended December 31, 2012
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Reconciliation of earnings to net cash provided by operating activities: |
||||||||||||
Earnings |
$ | 1,601 | $ | 1,062 | $ | 711 | ||||||
Adjustments to reconcile earnings to net cash provided by operating activities: |
||||||||||||
Depreciation |
446 | 542 | 500 | |||||||||
Loss on sale/disposal of premises and equipment |
2 | 321 | | |||||||||
Gain on sale of available-for-sale securities |
(11 | ) | (144 | ) | (511 | ) | ||||||
Loss on sale of foreclosed assets |
19 | 148 | 128 | |||||||||
Provision for loan losses |
(470 | ) | 400 | 1,130 | ||||||||
Amortization and accretion, net |
1,151 | 535 | 370 | |||||||||
Stock-based compensation expense |
19 | 11 | 16 | |||||||||
Valuation adjustment on foreclosed assets |
420 | | 56 | |||||||||
Deferred gain realized for foreclosed assets |
(11 | ) | | | ||||||||
Decrease (increase) in loans held for sale |
(1,533 | ) | 1,093 | (1,841 | ) | |||||||
Increase in accrued interest receivable |
(75 | ) | (50 | ) | (84 | ) | ||||||
Decrease in other assets |
56 | 544 | 1,127 | |||||||||
Decrease in accrued interest payable |
(18 | ) | (59 | ) | (108 | ) | ||||||
Increase in accounts payable and other liabilities |
78 | 222 | 107 | |||||||||
|
|
|
|
|
|
|||||||
Total adjustments |
73 | 3,563 | 890 | |||||||||
|
|
|
|
|
|
|||||||
Net cash provided by operating activities |
$ | 1,674 | $ | 4,625 | $ | 1,601 | ||||||
|
|
|
|
|
|
|||||||
Supplemental Schedule of Non-Cash Activities: |
||||||||||||
Unrealized gain (loss) in value of securities available-for-sale |
$ | 332 | $ | 889 | $ | (135 | ) | |||||
|
|
|
|
|
|
|||||||
Transfer of loans to foreclosed assets |
$ | 335 | $ | 179 | $ | 1,513 | ||||||
|
|
|
|
|
|
|||||||
Transfer of foreclosed assets to loans |
$ | | $ | 550 | $ | | ||||||
|
|
|
|
|
|
See accompanying notes to consolidated financial statements.
F-77
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(1) | SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES |
The accounting and reporting policies of MidSouth Bank and subsidiary (the Bank) are in accordance with accounting principles generally accepted in the United States of America and conform to general practices within the banking industry. The following is a brief summary of the more significant policies.
(a) | Principles of Consolidation |
The consolidated financial statements include the accounts of MidSouth Bank and its wholly-owned subsidiary, MSB Services, Inc. All significant intercompany accounts and transactions have been eliminated in consolidation.
(b) | Nature of Operations |
MidSouth Bank operates under a state bank charter and provides full banking services. As a state bank, the Bank is subject to regulations of the TDFI and the Board of Governors of the Federal Reserve System. The area served by MidSouth Bank is Rutherford County and adjacent counties of Middle Tennessee. Services are provided at the main office and three branch offices located in Murfreesboro, Tennessee and one branch office located in Smyrna, Tennessee.
(c) | Subsequent Events |
The Bank invested $3 million in bank-owned life insurance on March 15, 2013, as an alternative investment due to the return on investment the instrument offered.
(d) | Estimates |
The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Material estimates that are particularly susceptible to significant change in the near term relate to determination of the allowance for loan losses, valuation of debt and equity securities, foreclosed assets and the fair value of financial instruments.
(e) | Loans |
Loans are stated at the principal amount outstanding. The allowance for loan losses is shown as a reduction of loans. Certain loan origination and commitment fees and certain loan-related costs are being deferred and the net amount amortized as an adjustment of the related loans yield over the contractual life of the loan. Interest income on loans is accrued based on the principal amount outstanding.
The Bank follows the provisions of ASC 310, Receivables, specifically ASC 310-10-35-16, in relation to impaired loans. These provisions apply to impaired loans except for large groups of smaller-balance homogeneous loans that are collectively evaluated for impairment including residential mortgage and consumer loans.
F-78
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
A loan is impaired when it is probable that the Bank will be unable to collect the scheduled payments of principal and interest due under the contractual terms of the loan agreement. Impaired loans are measured at the present value of expected future cash flows discounted at the loans effective interest rate, at the loans observable market price, or the fair value of the collateral if the loan is collateral dependent. If the measure of the impaired loan is less than the recorded investment in the loan, the Bank recognizes impairment by creating a valuation allowance with a corresponding charge to the provision for loan losses or by adjusting an existing valuation allowance for the impaired loan with a corresponding charge or credit to the provision for loan losses.
The Banks consumer and residential mortgage loans which total $1,301,000 and $40,567,000, respectively, at December 31, 2012, are divided into various groups of smaller-balance homogeneous loans that are collectively evaluated for impairment and, thus, are not subject to the provisions of ASC 310. In certain situations where consumer or residential mortgage loans are part of a larger relationship that is being evaluated for impairment, those loans are included in the ASC 310 provision calculation. Substantially all other loans of the Bank are evaluated for impairment under the provisions of ASC 310.
The Bank considers all loans subject to the provisions of ASC 310 that are on a nonaccrual status to be impaired. Loans are placed on nonaccrual status when doubt as to timely collection of principal or interest exists, or when principal or interest is past due 90 days or more unless such loans are well-secured and in the process of collection. Past due status of loans is based on the contractual terms of the loan. Delays or shortfalls in loan payments are evaluated along with various other factors to determine if a loan is impaired. Generally, delinquencies under 90 days are considered insignificant unless certain other factors are present which indicate impairment is probable. The decision to place a loan on nonaccrual status is also based on an evaluation of the borrowers financial condition, collateral, liquidation value, and other factors that affect the borrowers ability to pay.
Generally, at the time a loan is placed on nonaccrual status, all interest accrued and uncollected on the loan in the current fiscal year is reversed from income, and all interest accrued and uncollected from the prior year is charged off against the allowance for loan losses. Thereafter, interest on nonaccrual loans is recognized as interest income only to the extent that cash is received and future collection of principal is not in doubt. If the collectability of outstanding principal is doubtful, such cash received is applied as a reduction of principal. A nonaccrual loan may be restored to an accruing status when principal and interest are no longer past due and unpaid and future collection of principal and interest on a timely basis is not in doubt.
Loans not on nonaccrual status are classified as impaired in certain cases when there is inadequate protection by the current net worth and financial capacity of the borrower or of the collateral pledged, if any. In those cases, such loans have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt, and if such deficiencies are not corrected, there is a probability that the Bank will sustain some loss. In such cases, interest income continues to accrue as long as the loan does not meet the Banks criteria for nonaccrual status.
Generally, the Bank also classifies as impaired any loans the terms of which have been modified in a troubled debt restructuring. Interest is generally accrued on such loans that continue to meet the modified terms of their loan agreements.
The Banks charge-off policy for impaired loans is similar to its charge-off policy for all loans in that loans are charged off in the month when they are considered uncollectible.
F-79
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(f) | Allowance for Loan Losses |
The provision for loan losses represents a charge to earnings necessary, after loan charge-offs and recoveries, to maintain the allowance for loan losses at an appropriate level which is adequate to absorb estimated losses inherent in the loan portfolio. Such estimated losses arise primarily from the loan portfolio but may also be derived from other sources, including commitments to extend credit and letters of credit (which are separately classified in other liabilities). The level of the allowance is determined on a quarterly basis using procedures which include: (1) categorizing commercial and commercial real estate loans into risk categories to estimate loss probabilities based primarily on the historical loss experience of those risk categories and current economic conditions; (2) analyzing significant commercial and commercial real estate credits and calculating specific reserves as necessary; (3) assessing various homogeneous consumer loan categories to estimate loss probabilities based primarily on historical loss experience; and (4) considering various other factors, such as changes in credit concentrations, loan mix, and economic conditions which may not be specifically quantified in the loan analysis process.
The allowance for loan losses consists of an allocated portion and an unallocated, or general, portion. The allocated portion is maintained to cover estimated losses applicable to specific segments of the loan portfolio. The unallocated portion is maintained to absorb losses which probably exist as of the evaluation date but are not identified by the more objective processes used for the allocated portion of the allowance due to risk of errors or imprecision. While the total allowance consists of an allocated portion and an unallocated portion, these terms are primarily used to describe a process. Both portions of the allowance are available to provide for inherent loss in the entire portfolio.
The allowance for loan losses is increased by provisions for loan losses charged to expense and is reduced by loans charged off net of recoveries on loans previously charged off. The provision is based on managements determination of the amount of the allowance necessary to provide for estimated loan losses based on its evaluation of the loan portfolio. Determining the appropriate level of the allowance and the amount of the provision involves uncertainties and matters of judgment and therefore cannot be determined with precision.
(g) | Securities |
The Bank accounts for securities under the provisions of ASC 320, InvestmentsDebt and Equity Securities . Under these provisions, securities are classified in three categories and accounted for as follows:
| Securities Held-to-Maturity |
Debt securities that the Bank has the positive intent and ability to hold to maturity are classified as held-to-maturity securities and reported at amortized cost. Amortization of premiums and accretion of discounts are recognized by the interest method. No securities have been classified as held-to-maturity.
F-80
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
| Trading Securities |
Debt and equity securities that are bought and held principally for the purpose of selling them in the near term are classified as trading securities and reported at fair value, with unrealized gains and losses included in earnings. No securities have been classified as trading securities.
| Securities Available-for-Sale |
Debt and equity securities not classified as either held-to-maturity securities or trading securities are classified as available-for-sale securities and reported at estimated fair value, with unrealized gains and losses excluded from earnings and reported in a separate component of stockholders equity. Premiums and discounts are recognized by the interest method.
If a decline in the fair value of a security below its amortized cost is judged by management to be an other-than-temporary loss, the cost basis of the security is written down to fair value, and the amount of the write-down is included in the statements of earnings. In estimating other-than-temporary losses, management considers the following: the length of time and extent to which fair value has been less than cost, the financial condition and near-term prospects of the issue, whether the market decline was affected by macroeconomic conditions and whether the Bank has the intention to sell the debt security before its anticipated recovery. The assessment of whether an other-than-temporary loss exists involves a high degree of subjectivity and judgment and is based on the information available to management at a point in time.
The Bank has classified all its securities as available-for-sale. Realized gains or losses from the sale of securities are recognized based upon the specific identification method.
(h) | Loans Held for Sale |
Mortgage loans held for sale are reported at the lower of cost or market value determined by outstanding commitments from investors at the balance sheet date. These loans are valued on an aggregate basis.
(i) | Bank Premises and Equipment |
Premises and equipment are stated at cost. Depreciation is computed by the straight-line method over the estimated useful lives of the related assets. Gain or loss on items retired and otherwise disposed of is credited or charged to operations, and cost and related accumulated depreciation are removed from the asset and accumulated depreciation accounts.
Expenditures for major renewals and improvements of bank premises and equipment are capitalized and those for maintenance and repairs are charged to earnings as incurred.
(j) | Foreclosed Assets |
Assets acquired through, or in lieu of, loan foreclosure are held for sale and are initially recorded at the lower of cost or fair value less cost to sell at the date of foreclosure, establishing a new cost basis. Any write down at the time of transfer to foreclosed assets is charged to the allowance for
F-81
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
loan losses. Subsequent to foreclosure, valuations are periodically performed by management, and the assets are carried at the lower of carrying amount or fair value less estimated retention and disposition costs. Revenue and expenses from operations and changes in the valuation allowance are included in non-interest expenses.
(k) | Cash and Cash Equivalents |
For purposes of reporting cash flows, cash and cash equivalents include cash on hand, amounts due from banks, Federal funds sold and interest-bearing deposits at other financial institutions. Generally, Federal funds sold are purchased and sold for one-day periods. The Bank, at times, maintains deposits in excess of the Federal insurance amounts with other financial institutions. Management makes deposits only with financial institutions it considers to be financially sound.
(l) | Interest-Bearing Accounts at Other Financial Institutions |
Interest-bearing accounts at other financial institutions mature within one year and are carried at cost.
(m) | Long-Term Assets |
Premises and equipment and other long-term assets are reviewed for impairment when events indicate their carrying amount may not be recoverable from future undiscounted cash flows. If impaired, the assets are recorded at the lower of cost or fair value.
(n) | Stock Options |
The Bank accounts for the MidSouth Bank 2004 Stock Option Arrangement (the Arrangement) using the provisions of ASC 718, Compensation Stock Compensation . The Bank recognizes stock compensation cost for services received in a share-based payment transaction over the required write-down period, generally defined as the vesting period. For awards with graded vesting, compensation cost in recognized on a straight-line basis over the requisite service period for the entire award. The compensation cost of employee and director services received in exchange for stock awards is based on the grant date fair value of the award (as determined by using a Black-Scholes option valuation model). Stock compensation expense recognized reflects estimated forfeitures, adjusted as necessary for actual forfeitures.
The fair value of each option award is estimated on the date of grant using a Black-Scholes option valuation model that uses the following assumptions. Expected volatility is based on implied volatility from comparable publicly-traded banks. The Bank uses historical data to estimate option exercise and employee termination within the valuation model; separate groups of employees that have similar historical exercise behavior are considered separately for valuation purposes. The expected term of options granted is derived from the average of: 1) the weighted average vesting term; and 2) original contractual term. The risk-free rate is based on the U.S. Treasury yield in effect at the time of grant and the weighted average expected life of the grant.
F-82
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(o) | Income Taxes |
Provisions for income taxes are based on taxes payable or refundable for the current year (after exclusion of non-taxable income such as interest on state and municipal securities) and deferred taxes on temporary differences between the amount of taxable and pretax financial income and between the tax bases of assets and liabilities and their reported amounts in the consolidated financial statements. Deferred tax assets and liabilities are included in the consolidated financial statements at currently enacted income tax rates applicable to the period in which the deferred tax asset and liabilities are expected to be realized or settled as prescribed in ASC 740, Income Taxes . As changes in tax laws or rates are enacted, deferred tax assets and liabilities are adjusted through the provision for income taxes.
When tax returns are filed, it is highly certain that some positions taken would be sustained upon examination by the taxing authorities, while others are subject to uncertainty about the merits of the position taken or the amount of the position that would be ultimately sustained. The benefit of a tax position is recognized in the consolidated financial statements in the period during which, based on all available evidence, management believes it is more likely than not that the position will be sustained upon examination, including the resolution of appeals or litigation processes, if any. Tax positions taken are not offset or aggregated with other positions. Tax positions that meet the more-likely-than-not recognition threshold are measured as the largest amount of tax benefit that is more than 50 percent likely of being realized upon settlement with the applicable taxing authority. The portion of the benefits associated with tax positions taken that exceeds the amount measured as described above is reflected as a liability for unrecognized tax benefits in the accompanying consolidated balance sheets along with any associated interest and penalties that would be payable to the taxing authorities upon examination. Interest and penalties associated with unrecognized tax benefits are classified as additional income taxes in the consolidated statements of earnings, as applicable.
The Bank is currently open to audit under the statute of limitations by the Internal Revenue Service and by the State of Tennessee for the years ended December 31, 2009 through 2011. Once the Banks 2012 taxes are filed, the statute of limitations will change to the years ended December 31, 2010 through 2012.
(p) | Advertising Costs |
Advertising costs are expensed when incurred by the Bank.
(q) | Off-Balance-Sheet Financial Instruments |
In the ordinary course of business the Bank has entered into off-balance-sheet financial instruments consisting of commitments to extend credit, commercial letters of credit and standby letters of credit. Such financial instruments are recorded in the consolidated financial statements when they are funded or related fees are incurred or received.
F-83
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(r) | Derivative Financial Instruments |
Derivative financial instruments are recognized as assets and liabilities in the consolidated financial statements and measured at fair value.
Derivative Loan Commitments
Mortgage loan commitments are referred to as derivative loan commitments if the loan that will result from exercise of the commitment will be held for sale upon funding. Loan commitments that are derivatives are recognized at fair value in the consolidated balance sheet with changes in their fair values recorded in fees on mortgage originations.
The Bank records a zero value for the loan commitment at inception (at the time the commitment is issued to a borrower (the time of rate lock), and accordingly, does not recognize the value of the expected normal servicing rights until the underlying loan is sold. Subsequent to inception, changes in fair values of the loan commitments are recognized based on changes in the fair values of the underlying mortgage loans due to interest rate changes, changes in the probability the derivative loan commitments will be exercised, and the passage of time. In estimating fair value, the Bank assigns a probability to a loan commitment based on an expectation that it will be exercised and the loan will be funded.
Forward Loan Sale Commitments
The Bank carefully evaluates each loan sales agreement to determine whether it meets the definition of a derivative as facts and circumstances may differ significantly for each agreement. If agreements qualify, to protect against the price risk inherent in derivative loan commitments, the Bank utilizes best efforts forward loan sales commitments to mitigate the risk of potential decreases in the values of loans that would result from the exercise of the derivative loan commitments. Generally, the Banks best efforts contracts meet the definition of derivative instruments. Accordingly, forward loan sale commitments that economically hedge derivative loan commitments are recognized at fair value in the consolidated balance sheet with changes in their fair values recorded in fees on mortgage originations.
The Bank estimates the fair value of its forward loan sales commitments using a methodology similar to that used for derivative loan commitments.
(s) | Impact of New Accounting Standards |
There were no recently issued accounting pronouncements that are expected to impact MidSouth Bank.
(t) | Reclassifications |
Certain reclassifications have been made to the 2011 and 2010 amounts to conform to the presentation for 2012.
F-84
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(2) | LOANS AND ALLOWANCE FOR LOAN LOSSES |
Loans
The classification of loans at December 31, 2012 and 2011 is as follows:
(In Thousands) |
2012 | 2011 | ||||||
Commercial, financial and agricultural |
$ | 16,689 | $ | 20,229 | ||||
Real estate: |
||||||||
Commercial |
61,322 | 59,695 | ||||||
Residential |
40,567 | 38,579 | ||||||
Construction and land development |
16,571 | 14,366 | ||||||
Multifamily |
1,088 | 1,180 | ||||||
Consumer and other |
4,641 | 6,377 | ||||||
|
|
|
|
|||||
140,878 | 140,426 | |||||||
Allowance for loan losses |
(3,088 | ) | (3,283 | ) | ||||
|
|
|
|
|||||
Net loans |
$ | 137,790 | $ | 137,143 | ||||
|
|
|
|
The Banks principal customers are generally in the Middle Tennessee area with a concentration in Rutherford and adjacent counties. Credit is extended to businesses and individuals and is evidenced by promissory notes. The terms and conditions of the loans, including collateral, vary depending upon the purpose of each credit and each borrowers financial condition. At December 31, 2012, variable rate and fixed rate loans totaled $44,499,000 and $96,379,000 respectively. At December 31, 2011, variable rate and fixed rate loans totaled $41,180,000 and $99,246, 000, respectively.
In 2012, 2011 and 2010, the Bank originated residential mortgage loans for sale in the secondary market of $31,567,000, $20,617,000, and $26,615,000, respectively. The Bank underwrites these mortgage loans and has recourse related to the mortgage loans sold that would occur if a borrower misrepresented their financial position to obtain the loan, and the Bank had knowledge of the misrepresentation but failed to act. The Banks recourse also extends to situations in which borrowers become more than 30 days past due on any of the first three payments due on their mortgage loans. As of December 31, 2012, the Bank had potential recourse for mortgage loans originated and sold during the fourth quarter of 2012 that totaled $8,764,000, for which a reserve of $15,000 was recorded as of December 31, 2012. The reserve was calculated based on industry historical loss factors adjusted for current environmental factors. The Bank has never been required to repurchase a loan previously sold for any such instances. The fees on mortgage loan originations totaled $642,000, $322,000 and $383,000 in 2012, 2011 and 2010, respectively.
In the normal course of business, the Bank has made loans at prevailing interest rates and terms to its executive officers, directors and their affiliates aggregating $10,564,000 and $12,136,000 at December 31, 2012 and 2011, respectively. During 2012 and 2011, $1,993,000 and $3,083,000, respectively, in loan advances were made, and $2,825,000 and $3,165,000, respectively, in repayments were made. During 2012, two of the Banks directors retired, resulting in a reduction in loans to insiders of $1,133,000. In addition, the Bank added three new directors in 2012, which added $559,000 to insider loans. As of December 31, 2012 and 2011, none of these loans were restructured, nor were any related party loans charged-off during the past three years.
F-85
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Allowance for Loan Losses
Transactions in the allowance for loan losses of the Bank for the years ended December 31, 2012, 2011 and 2010 are summarized as follows:
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Balance beginning of year |
$ | 3,283 | $ | 4,447 | $ | 8,080 | ||||||
Provision (deducted from)/charged to operating expense |
(470 | ) | 400 | 1,130 | ||||||||
Loans charged off |
(554 | ) | (1,943 | ) | (5,028 | ) | ||||||
Recoveries |
829 | 379 | 265 | |||||||||
|
|
|
|
|
|
|||||||
Balance end of year |
$ | 3,088 | $ | 3,283 | $ | 4,447 | ||||||
|
|
|
|
|
|
The following table documents the activity in the allowance for loan losses by portfolio segment for the year ended December 31, 2012:
(In Thousands) |
Commercial,
Financial and Agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||||||
Beginning balance (1/1/2012) |
$ | 407 | $ | 1,012 | $ | 739 | $ | 1,068 | $ | 7 | $ | 50 | $ | 3,283 | ||||||||||||||
Charge-offs |
(80 | ) | (257 | ) | (120 | ) | (78 | ) | | (19 | ) | (554 | ) | |||||||||||||||
Recoveries |
686 | | 39 | 63 | | 41 | 829 | |||||||||||||||||||||
Provisions |
(464 | ) | 209 | (139 | ) | (47 | ) | 6 | (35 | ) | (470 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Ending balance (12/31/2012) |
$ | 549 | $ | 964 | $ | 519 | $ | 1,006 | $ | 13 | $ | 37 | $ | 3,088 | ||||||||||||||
|
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|
|
|
|
|
|
|
|
|
|
|
|
The following table documents the activity in the allowance for loan losses by portfolio segment for the year ended December 31, 2011:
(In Thousands) |
Commercial,
Financial and Agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||||||
Beginning balance (1/1/2011) |
$ | 576 | $ | 1,069 | $ | 711 | $ | 2,020 | $ | | $ | 71 | $ | 4,447 | ||||||||||||||
Charge-offs |
(559 | ) | (699 | ) | (207 | ) | (348 | ) | (15 | ) | (115 | ) | (1,943 | ) | ||||||||||||||
Recoveries |
162 | 7 | 60 | 125 | 13 | 12 | 379 | |||||||||||||||||||||
Provisions |
228 | 635 | 175 | (729 | ) | 9 | 82 | 400 | ||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Ending balance (12/31/2011) |
$ | 407 | $ | 1,012 | $ | 739 | $ | 1,068 | $ | 7 | $ | 50 | $ | 3,283 | ||||||||||||||
|
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|
|
|
|
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|
|
|
|
F-86
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The allocation of the allowance for loan losses by portfolio segment at December 31, 2012 was as follows:
(In Thousands) |
Commercial,
Financial and Agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Specific reserves Impaired loans |
$ | 321 | $ | 263 | $ | 186 | $ | 163 | $ | | $ | | $ | 933 | ||||||||||||||
General reserves |
228 | 701 | 333 | 843 | 13 | 37 | 2,155 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 549 | $ | 964 | $ | 519 | $ | 1,006 | $ | 13 | $ | 37 | $ | 3,088 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Loans individually evaluated for impairment |
$ | 2,037 | $ | 2,324 | $ | 1,967 | $ | 1,395 | $ | | $ | | $ | 7,723 | ||||||||||||||
Loans collectively evaluated for impairment |
14,652 | 58,998 | 38,600 | 15,176 | 1,088 | 4,641 | 133,155 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 16,689 | $ | 61,322 | $ | 40,567 | $ | 16,571 | $ | 1,088 | $ | 4,641 | $ | 140,878 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The allocation of the allowance for loan losses by portfolio segment at December 31, 2011 was as follows:
F-87
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Impaired Loans
Impaired loans and related allowance for loan losses allocation amounts at December 31, 2012 were as follows:
Impaired Loans With Allowance |
Impaired Loans
With No Allowance |
|||||||||||||||||||
(In Thousands) |
Principal
Balance |
Recorded
Investment |
Allocated
Allowance for Loan Losses |
Principal
Balance |
Recorded
Investment |
|||||||||||||||
Commercial, financial and agricultural |
$ | 1,220 | $ | 1,220 | $ | 321 | $ | 817 | $ | 817 | ||||||||||
Real estate commercial |
1,259 | 1,259 | 263 | 1,065 | 1,067 | |||||||||||||||
Real estate residential: |
||||||||||||||||||||
Open ended |
138 | 139 | 15 | | | |||||||||||||||
Closed ended |
926 | 931 | 171 | 903 | 905 | |||||||||||||||
Construction and land development |
1,395 | 1,395 | 163 | | | |||||||||||||||
Real estate multifamily |
| | | | | |||||||||||||||
Consumer and other |
| | | | | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 4,938 | $ | 4,944 | $ | 933 | $ | 2,785 | $ | 2,789 | ||||||||||
|
|
|
|
|
|
|
|
|
|
Impaired loans and related allowance for loan losses allocation amounts at December 31, 2011 were as follows:
Impaired Loans With Allowance |
Impaired Loans
With No Allowance |
|||||||||||||||||||
(In Thousands) |
Principal
Balance |
Recorded
Investment |
Allocated
Allowance for Loan Losses |
Principal
Balance |
Recorded
Investment |
|||||||||||||||
Commercial, financial and agricultural |
$ | 568 | $ | 569 | $ | 228 | $ | 1,883 | $ | 1,884 | ||||||||||
Real estate commercial |
1,556 | 1,556 | 317 | 1,815 | 1,818 | |||||||||||||||
Real estate residential: |
||||||||||||||||||||
Open ended |
138 | 139 | 17 | | | |||||||||||||||
Closed ended |
3,678 | 3,689 | 562 | 1,020 | 1,023 | |||||||||||||||
Construction and land development |
1,788 | 1,788 | 395 | 213 | 213 | |||||||||||||||
Real estate multifamily |
| | | | | |||||||||||||||
Consumer and other |
| | | 4 | 4 | |||||||||||||||
|
|
|
|
|
|
|
|
|
|
|||||||||||
Total |
$ | 7,728 | $ | 7,741 | $ | 1,519 | $ | 4,935 | $ | 4,942 | ||||||||||
|
|
|
|
|
|
|
|
|
|
The average recorded investment in impaired loans for the year ended December 31, 2012 was $10,396,000. The related total amount of interest income recognized on the accrual basis for the period that such loans were impaired was $157,000 for 2012. The average recorded investment in impaired loans for the year ended December 31, 2011 was $14,728,000. The related total amount of interest income recognized on the accrual basis for the period that such loans were impaired was $822,000 for 2011. The average recorded investment in impaired loans for the year ended December 31, 2010 was $23,660,000. The related total amount of interest income recognized on the accrual basis for the period that such loans were impaired was $667,000 for 2010.
F-88
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Credit Quality Indicators
The Bank categorizes loans into risk categories based on relevant information about the ability of borrowers to service their debt such as: current financial information, historical payment experience, credit documentation, public information, and current economic trends, among other factors. The Bank analyzes loans individually by classifying the loans as to credit risk. Loans classified as substandard or special mention are reviewed regularly by the Bank to determine if appropriately classified or to determine if the loan is impaired. The Banks loan portfolio is reviewed for credit quality on a quarterly basis, with samples being selected based on loan size, credit grades, etc., to ensure that the Banks management is properly applying credit risk management processes.
Loans excluded from the scope of the loan review process are generally classified as pass credits until: (a) they become past due; (b) management becomes aware of deterioration in the credit worthiness of the borrower; or (c) the customer contacts the Bank for a modification. In these circumstances, the customer relationship is specifically evaluated for potential classification as to special mention, substandard or doubtful, or could even be considered for charge-off. The Bank uses the following definitions for risk ratings:
| Pass/Watch (also known as Special Mention) Loans included in this category are currently protected but are potentially weak. These loans constitute an undue and unwarranted credit risk but do not presently expose the Bank to a sufficient degree of risk to warrant adverse classification. Close management attention is required. New loans should not be made which will immediately be identified in this category. As a general rule, for the purposes of calculating a loan loss reserve, loans in this category will have the historical loss reserve percentage applied and will remain in a pool with loans that are considered acceptable or better when determining the general valuation reserve. Loans classified as special mention have potential weaknesses that deserve managements close attention. If left uncorrected, these potential weaknesses may result in deterioration of the repayment prospects for the loan or of the institutions credit position at some future date. |
| Substandard Substandard loans are inadequately protected by the current net worth and financial capacity of the borrower or of the collateral pledged, if any. Loans so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt. They are characterized by the distinct possibility that the Bank will sustain some loss if the deficiencies are not corrected. Loss potential, while existing in the aggregate amount of substandard assets, does not have to exist in individual assets classified as substandard. Loans in this category are evaluated individually as outlined in the Banks loan policy when determining the general valuation reserve. |
| Doubtful Loans classified as doubtful have all the weaknesses inherent in those classified as substandard, with the added characteristic that the weaknesses make collection or liquidation in full highly questionable or improbable, based on currently existing facts, conditions, and values. |
F-89
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The following table breaks down the Banks credit quality indicators by type of loan as of December 31, 2012:
Credit Risk Profile by Internally Assigned Grade
(In Thousands) |
Commercial,
Financial and Agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Grade |
||||||||||||||||||||||||||||
Pass |
$ | 10,519 | $ | 58,050 | $ | 36,343 | $ | 12,312 | $ | 545 | $ | 4,600 | $ | 122,369 | ||||||||||||||
Special Mention |
4,133 | 734 | 1,300 | 2,864 | 543 | 35 | 9,609 | |||||||||||||||||||||
Substandard |
2,037 | 2,538 | 2,878 | 1,395 | | 6 | 8,854 | |||||||||||||||||||||
Doubtful |
| | 46 | | | | 46 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 16,689 | $ | 61,322 | $ | 40,567 | $ | 16,571 | $ | 1,088 | $ | 4,641 | $ | 140,878 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table breaks down the Banks credit quality indicators by type of loan as of December 31, 2011:
Credit Risk Profile by Internally Assigned Grade
(In Thousands) |
Commercial,
Financial and Agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Grade |
||||||||||||||||||||||||||||
Pass |
$ | 16,108 | $ | 56,140 | $ | 33,010 | $ | 7,037 | $ | 618 | $ | 6,325 | $ | 119,238 | ||||||||||||||
Special Mention |
1,695 | 184 | 543 | 5,303 | 562 | 29 | 8,316 | |||||||||||||||||||||
Substandard |
2,424 | 3,371 | 4,875 | 2,026 | | 19 | 12,715 | |||||||||||||||||||||
Doubtful |
2 | | 151 | | | 4 | 157 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 20,229 | $ | 59,695 | $ | 38,579 | $ | 14,366 | $ | 1,180 | $ | 6,377 | $ | 140,426 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nonaccrual and Past Due Loans
The following table provides an aging analysis of the Banks past due loans as of December 31, 2012:
(In Thousands) |
30-59
Days Past Due |
60-89
Days Past Due |
Greater
than 90 Days or Non-accrual |
Total
Non-accrual and Past Due Loans |
Total
Current Loans |
Total
Loans |
Recorded
Investment Past Due >90 Days and Still Accruing |
|||||||||||||||||||||
Commercial, financial and agricultural |
$ | | $ | | $ | 1,746 | $ | 1,746 | $ | 14,943 | $ | 16,689 | $ | | ||||||||||||||
Real estate: |
||||||||||||||||||||||||||||
Commercial |
| | 1,820 | 1,820 | 59,502 | 61,322 | | |||||||||||||||||||||
Residential |
258 | | 705 | 963 | 39,604 | 40,567 | | |||||||||||||||||||||
Construction and land development |
228 | | 1,396 | 1,624 | 14,947 | 16,571 | | |||||||||||||||||||||
Multifamily |
| | | | 1,088 | 1,088 | | |||||||||||||||||||||
Consumer and other |
2 | | 6 | 8 | 4,633 | 4,641 | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 488 | $ | | $ | 5,673 | $ | 6,161 | $ | 134,717 | $ | 140,878 | $ | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-90
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The following table provides an aging analysis of the Banks past due loans as of December 31, 2011:
(In Thousands) |
30-59
Days Past Due |
60-89
Days Past Due |
Greater
than 90 Days or Non-accrual |
Total
Non-accrual and Past Due Loans |
Total
Current Loans |
Total
Loans |
Recorded
Investment Past Due >90 Days and Still Accruing |
|||||||||||||||||||||
Commercial, financial and agricultural |
$ | | $ | | $ | 2,106 | $ | 2,106 | $ | 18,123 | $ | 20,229 | $ | | ||||||||||||||
Real estate: |
||||||||||||||||||||||||||||
Commercial |
| | 2,848 | 2,848 | 56,847 | 59,695 | | |||||||||||||||||||||
Residential |
195 | | 1,112 | 1,307 | 37,272 | 38,579 | | |||||||||||||||||||||
Construction and land development |
97 | | 1,861 | 1,958 | 12,408 | 14,366 | | |||||||||||||||||||||
Multifamily |
| | | | 1,180 | 1,180 | | |||||||||||||||||||||
Consumer and other |
| | 19 | 19 | 6,358 | 6,377 | | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 292 | $ | | $ | 7,946 | $ | 8,238 | $ | 132,188 | $ | 140,426 | $ | | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Troubled Debt Restructurings
The Banks loan portfolio includes certain loans that have been modified in a troubled debt restructuring (TDR), where economic concessions have been granted to borrowers who have experienced or are expected to experience financial difficulties. These concessions typically result from the Banks loss mitigation activities and could include reductions in the interest rate, payment extensions, forgiveness of principal, forbearance or other actions. Certain TDRs are classified as nonperforming at the time of restructure and may only be returned to performing status after considering the borrowers sustained repayment performance for a reasonable period, generally six months.
F-91
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The following table summarizes the carrying balances of TDRs at December 31, 2012 and 2011:
Carrying Balance | ||||||||
(In thousands) |
2012 | 2011 | ||||||
Performing TDRs |
$ | 789 | $ | 972 | ||||
Nonperforming TDRs |
3,207 | 4,038 | ||||||
|
|
|
|
|||||
Total TDRs |
$ | 3,996 | $ | 5,010 | ||||
|
|
|
|
Troubled debt restructurings may be removed from this status if both of the following conditions exist: (1) the restructuring agreement specifies an interest rate equal to or greater than the rate that the borrower was willing to accept at the time of the restructuring for a new loan with comparable risk; and (2) the loan is not impaired based on the terms specified by the restructuring agreement. Based on these criteria, there were no TDRs removed from this classification during the year ended December 31, 2012; however, three TDRs were paid in full during 2012, and one TDR was charged off during 2012. Any loans classified as TDRs are evaluated for impairment by the Bank if they are not already impaired at the time of restructuring.
The following table summarizes loans that were modified as TDRs during the periods indicated:
For the year ended December 31, 2012 | ||||||||||||
(In thousands) |
Number of
contracts |
Outstanding
recorded investment before modification |
Outstanding
recorded investment after modification |
|||||||||
Commercial, financial and agricultural |
| $ | | $ | | |||||||
Real estate: |
||||||||||||
Commercial |
| | | |||||||||
Residential |
3 | 433 | 433 | |||||||||
Construction and land development |
| | | |||||||||
Multifamily |
| | | |||||||||
Consumer and other |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total |
3 | $ | 433 | $ | 433 | |||||||
|
|
|
|
|
|
F-92
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
For the year ended December 31, 2011 | ||||||||||||
(In thousands) |
Number of
contracts |
Outstanding
recorded investment before modification |
Outstanding
recorded investment after modification |
|||||||||
Commercial, financial and agricultural |
4 | $ | 547 | $ | 547 | |||||||
Real estate: |
||||||||||||
Commercial |
2 | 1,309 | 1,309 | |||||||||
Residential |
6 | 515 | 515 | |||||||||
Construction and land development |
| | | |||||||||
Multifamily |
| | | |||||||||
Consumer and other |
| | | |||||||||
|
|
|
|
|
|
|||||||
Total |
12 | $ | 2,371 | $ | 2,371 | |||||||
|
|
|
|
|
|
(3) | DEBT SECURITIES |
Debt securities have been classified in the consolidated balance sheets according to managements intent. The Banks classification of securities at December 31, 2012 and 2011 is as follows:
2012 | ||||||||||||||||
Securities Available-for-Sale | ||||||||||||||||
(In Thousands) |
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Estimated
Market Value |
||||||||||||
U.S. Treasury and other U.S. Government agencies and corporations |
$ | 2,240 | $ | 21 | $ | 1 | $ | 2,260 | ||||||||
State and municipal securities |
18,242 | 118 | 76 | 18,284 | ||||||||||||
Mortgage-backed securities |
48,221 | 1,210 | 50 | 49,381 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 68,703 | $ | 1,349 | $ | 127 | $ | 69,925 | |||||||||
|
|
|
|
|
|
|
|
2011 | ||||||||||||||||
Securities Available-for-Sale | ||||||||||||||||
(In Thousands) |
Amortized
Cost |
Gross
Unrealized Gains |
Gross
Unrealized Losses |
Estimated
Market Value |
||||||||||||
U.S. Treasury and other U.S. Government agencies and corporations |
$ | 4,414 | $ | 25 | $ | 6 | $ | 4,433 | ||||||||
Mortgage-backed securities |
60,871 | 908 | 37 | 61,742 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
$ | 65,285 | $ | 933 | $ | 43 | $ | 66,175 | |||||||||
|
|
|
|
|
|
|
|
F-93
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The amortized cost and estimated market value of available-for-sale securities at December 31, 2012, by contractual maturity, are shown below. Expected maturities will differ from contractual maturities because borrowers may have the right to call or prepay obligations with or without call or prepayment penalties.
Expected Maturity |
Amortized
Cost |
Estimated
Market Value |
||||||
(In Thousands) | ||||||||
Due in one year or less |
$ | 4,970 | $ | 4,999 | ||||
Due after one year through five years |
44,133 | 45,287 | ||||||
Due after five years through ten years |
18,695 | 18,729 | ||||||
Over ten years |
905 | 910 | ||||||
|
|
|
|
|||||
$ | 68,703 | $ | 69,925 | |||||
|
|
|
|
There were gross proceeds of $4,556,000, gross gains of $101,000, and gross losses of $90,000 from sales of available-for-sale securities during 2012. There were gross proceeds of $13,761,000, gross gains of $144,000, and no gross losses from sales of available-for-sale securities during 2011. There were gross proceeds of $29,091,000, gross gains of $511,000, and no gross losses from sales of available-for-securities during 2010.
Securities carried in the consolidated balance sheets of approximately $7,244,000 (approximate book value of $7,022,000) and $6,970,000 (approximate book value of $6,732,000) at December 31, 2012 and 2011, respectively, were pledged to secure public deposits and for other purposes as required or permitted by law.
Securities that have rates that adjust prior to maturity totaled $2,408,000 (approximate market value of $2,440,000) and $3,597,000 (approximate market value of $3,604,000) at December 31, 2012 and 2011, respectively.
The following table shows the gross unrealized losses and fair values of the Banks investments aggregated by investment category and length of time that individual securities have been in continuous unrealized loss position, at December 31, 2012:
In Thousands, Except Number of Securities | ||||||||||||||||||||||||||||||||
Less than 12 Months | 12 Months or More | Total | ||||||||||||||||||||||||||||||
Fair
Value |
Unrealized
Losses |
Number
of Securities Included |
Fair
Value |
Unrealized
Losses |
Number
of Securities Included |
Fair
Value |
Unrealized
Losses |
|||||||||||||||||||||||||
U.S. Treasury and other U.S. Government agencies and corporations |
$ | 841 | $ | 1 | 1 | $ | | $ | | | $ | 841 | $ | 1 | ||||||||||||||||||
State and municipal securities |
6,435 | 76 | 10 | | | | 6,435 | 76 | ||||||||||||||||||||||||
Mortgage-backed securities |
2,840 | 49 | 2 | 455 | 1 | 1 | 3,295 | 50 | ||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total temporarily impaired securities |
$ | 10,116 | $ | 126 | 13 | $ | 455 | $ | 1 | 1 | $ | 10,571 | $ | 127 | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-94
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
These securities are considered high quality investments in line with normal industry investing practices. The unrealized losses are primarily the result of changes in the interest rate and sector environments. Consistent with the original classification as available-for-sale securities, the Bank does not intend to sell any of the debt securities with unrealized losses and do not believe that it is more likely than not that the Bank will be required to sell a security in an unrealized loss position prior to a recovery in its value. Accordingly, the Bank has not recognized any other-than-temporary impairment in our consolidated statements of operation.
The Bank may sell the above or other securities in the ordinary course of business in response to unexpected and significant changes in liquidity needs, unexpected and significant increases in interest rates and/or sector spreads that significantly extend the securitys holding period, or conducting a small volume of security transactions.
(4) | RESTRICTED EQUITY SECURITIES |
Restricted equity securities consist of stock of the Federal Reserve Bank and the Federal Home Loan Bank of Cincinnati amounting to $841,000 and $709,000, respectively, at December 31, 2012. At December 31, 2011, restricted equity securities consisted of stock of the Federal Reserve Bank and the Federal Home Loan Bank of Cincinnati amounting to $792,000 and $709,000, respectively. The stock can be sold back only at par or a value as determined by the issuing institution and only to the respective financial institution or to another member institution. These securities are recorded at cost.
During the year ended December 31, 2012, the Bank purchased restricted stock of the Federal Reserve Bank for $49,000 and sold none of its restricted stock of the Federal Reserve Bank. During the year ended December 31, 2011, the Bank purchased restricted stock of the Federal Reserve Bank for $90,000 and sold a portion of its restricted stock of the Federal Reserve Bank for proceeds of $18,000, with no gain or loss realized. During the year ended December 31, 2010, the Bank purchased restricted stock of the Federal Reserve Bank for $125,000 and sold a portion of its restricted stock of the Federal Reserve Bank for proceeds of $13,000, with no gain or loss realized.
(5) | BANK PREMISES AND EQUIPMENT |
The classification of premises and equipment at December 31, 2012 and 2011 are as follows:
(In Thousands) |
2012 | 2011 | ||||||
Land |
$ | 3,874 | $ | 3,874 | ||||
Buildings |
5,637 | 5,250 | ||||||
Furniture and equipment |
3,286 | 3,126 | ||||||
Assets not in use |
13 | 12 | ||||||
Construction in process |
126 | 178 | ||||||
|
|
|
|
|||||
12,936 | 12,440 | |||||||
Less accumulated depreciation |
(4,071 | ) | (3,629 | ) | ||||
|
|
|
|
|||||
$ | 8,865 | $ | 8,811 | |||||
|
|
|
|
Depreciation expense was $446,000, $542,000 and $500,000 for the years ended December 31, 2012, 2011 and 2010, respectively.
The Bank recorded a $2,000 loss on disposals of premises and equipment for the year ended December 31, 2012. The Bank recorded a $321,000 loss on disposals of premises and equipment for the year ended December 31, 2011, which included abandonments and charges related to changes in the Banks plans related to its main office location.
F-95
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(6) | DEPOSITS |
Deposits at December 31, 2012 and 2011 are summarized as follows:
(In Thousands) |
2012 | 2011 | ||||||
Demand deposits |
$ | 38,901 | $ | 30,717 | ||||
Savings deposits |
2,487 | 2,231 | ||||||
Negotiable order of withdrawal accounts |
35,747 | 31,976 | ||||||
Money market deposit accounts |
60,071 | 49,260 | ||||||
Certificates of deposit $100,000 or greater |
31,877 | 30,327 | ||||||
Other certificates of deposit |
47,330 | 54,255 | ||||||
Individual retirement accounts $100,000 or greater |
1,320 | 2,107 | ||||||
Other individual retirement accounts |
4,019 | 3,759 | ||||||
|
|
|
|
|||||
$ | 221,752 | $ | 204,632 | |||||
|
|
|
|
Principal maturities of certificates of deposit and individual retirement accounts at December 31, 2012 are as follows:
(In Thousands) |
Total | |||
2013 |
$ | 65,029 | ||
2014 |
13,504 | |||
2015 |
2,658 | |||
2016 |
2,307 | |||
2017 |
1,048 | |||
|
|
|||
$ | 84,546 | |||
|
|
At December 31, 2012 and 2011, certificates of deposit and individual retirement accounts in denominations of $100,000 or more amounted to $33,197,000 and $32,434,000, respectively. Included in time deposits in denominations of $100,000 or more at December 31, 2012 and 2011, are approximately $31,070,000 and $29,983,000, respectively, of time deposits in denominations of $100,000 or greater through $250,000, as those qualify for expanded FDIC insurance coverage.
The aggregate amount of overdrafts reclassified as loans receivable was $9,000 and $20,000 at December 31, 2012 and 2011, respectively.
The Bank is required to maintain cash balances or balances with the Federal Reserve Bank or other correspondent banks based on certain percentages of deposit types. The average required amounts for the years ended December 31, 2012 and 2011 were approximately $1,491,000 and $1,177,000, respectively.
F-96
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(7) | SECURITIES SOLD UNDER AGREEMENT TO REPURCHASE |
The following is a summary of information pertaining to securities sold under agreement to repurchase at December 31, 2012 and 2011:
(In Thousands) |
2012 | 2011 | ||||||
Ending balance |
$ | 1,044 | $ | 6,552 | ||||
Weighted average interest rate at year-end |
0.22 | % | 0.34 | % |
Securities sold under agreement to repurchase, which are classified as secured borrowings, generally mature within one to four days from the transaction date. Securities sold under agreement to repurchase are reflected at the amount of cash received in connection with the transaction. The Bank may be required to provide additional collateral based on the fair value of the underlying security. The securities sold under agreement to repurchase are collateralized by government agency and mortgage-backed securities held by the Bank.
Information concerning securities sold under agreement to repurchase is summarized below for the year ended December 31, 2012 and 2011:
(In Thousands) |
2012 | 2011 | ||||||
Average daily balance during the year |
$ | 1,897 | $ | 4,089 | ||||
Maximum month-end balance during the year |
$ | 3,903 | $ | 6,552 | ||||
Average interest rate during the year |
0.28 | % | 0.38 | % |
(8) | BORROWINGS |
The Bank has executed a blanket pledge and security agreement with the FHLB in the amount of $15,000,000 at December 31, 2012 and 2011, which encompasses certain types of loans as collateral for these borrowings. The maximum borrowing capacity for future borrowings, including term loans and the line of credit, was $15,000,000 and $13,604,000 at December 31, 2012 and 2011, respectively.
(9) | NON-INTEREST INCOME AND NON-INTEREST EXPENSE |
The significant components of non-interest income and non-interest expense for the years ended December 31 are presented below:
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Non-interest income : |
||||||||||||
Service charges on deposit accounts |
$ | 402 | $ | 400 | $ | 461 | ||||||
Fees on mortgage originations |
642 | 322 | 383 | |||||||||
Fees from brokerage operations |
592 | 599 | 506 | |||||||||
Other fees and commissions |
604 | 497 | 445 | |||||||||
Gain on sale of available-for-sale securities |
11 | 144 | 511 | |||||||||
|
|
|
|
|
|
|||||||
Total non-interest income |
$ | 2,251 | $ | 1,962 | $ | 2,306 | ||||||
|
|
|
|
|
|
F-97
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Non-interest expense : |
||||||||||||
Employee salaries and benefits |
$ | 4,856 | $ | 4,399 | $ | 4,227 | ||||||
Occupancy expenses |
749 | 837 | 763 | |||||||||
Furniture and equipment expense |
371 | 311 | 327 | |||||||||
Professional fees |
571 | 467 | 598 | |||||||||
Advertising expense |
151 | 170 | 153 | |||||||||
Data processing expense |
499 | 441 | 443 | |||||||||
Computer network expense |
141 | 101 | 105 | |||||||||
Computer software amortization |
10 | 18 | 29 | |||||||||
Loss on sales/disposals of premises and equipment |
2 | 321 | | |||||||||
Foreclosed asset expenses |
48 | 75 | 151 | |||||||||
Loss on sales of foreclosed assets, net |
8 | 148 | 128 | |||||||||
Valuation losses on foreclosed assets |
420 | | 56 | |||||||||
FDIC insurance |
213 | 501 | 735 | |||||||||
Other operating expenses |
1,424 | 1,152 | 1,471 | |||||||||
|
|
|
|
|
|
|||||||
Total non-interest expense |
$ | 9,463 | $ | 8,941 | $ | 9,186 | ||||||
|
|
|
|
|
|
(10) | INCOME TAXES |
The components of the net deferred income tax asset at December 31, 2012 and 2011 were as follows:
(In Thousands) |
2012 | 2011 | ||||||
Deferred tax asset: |
||||||||
Federal |
$ | 5,654 | $ | 6,175 | ||||
State |
1,156 | 1,263 | ||||||
|
|
|
|
|||||
6,810 | 7,438 | |||||||
|
|
|
|
|||||
Deferred tax liability: |
||||||||
Federal |
626 | 517 | ||||||
State |
128 | 106 | ||||||
|
|
|
|
|||||
754 | 623 | |||||||
|
|
|
|
|||||
Total net deferred assets |
6,056 | 6,815 | ||||||
Less valuation allowance |
(6,056 | ) | (6,815 | ) | ||||
|
|
|
|
|||||
Net deferred assets |
$ | | $ | | ||||
|
|
|
|
F-98
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The tax effects of each type of significant item that gave rise to deferred tax assets (liabilities) at December 31, 2012 and 2011 are:
(In Thousands) |
2012 | 2011 | ||||||
Financial statement allowance for loan losses in excess of the tax allowance |
$ | 335 | $ | 357 | ||||
Net operating loss carry forward |
5,657 | 6,443 | ||||||
Stock compensation expense recognized for financial statement purposes and deferred for tax purposes |
72 | 65 | ||||||
Unrealized contributions carryovers |
7 | 7 | ||||||
Stock dividends on Federal Home Loan Bank stock recognized for financial statement purposes and deferred for tax purposes |
(9 | ) | (9 | ) | ||||
Interest on non-accrual loans deferred for financial statement purposes and recognized for tax purposes |
132 | 103 | ||||||
Capital loss carryover |
454 | 463 | ||||||
Allowance for foreclosed assets recognized for financial statement purposes and deferred for tax purposes |
153 | | ||||||
Excess of depreciation deducted for tax purposes over the amounts deducted for financial statements |
(264 | ) | (259 | ) | ||||
Loan fees recognized for tax purposes deferred for financial statements |
(13 | ) | (15 | ) | ||||
Excess of estimated market value over amortized cost related to available-for-sale securities |
(468 | ) | (340 | ) | ||||
6,056 | 6,815 | |||||||
Valuation allowance |
(6,056 | ) | (6,815 | ) | ||||
|
|
|
|
|||||
$ | | $ | | |||||
|
|
|
|
Management reviews the Banks deferred tax assets for realization based upon historical taxable income, prudent and feasible tax planning strategies, the expected timing of the reversals of existing temporary differences and expected future taxable income. The Bank records a valuation allowance to reduce our deferred tax assets to the amount that management believes will more likely than not be realized.
The components of income tax expense (benefit) are summarized as follows:
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Current: |
||||||||||||
Federal |
$ | | $ | | $ | | ||||||
State |
| | | |||||||||
|
|
|
|
|
|
|||||||
| | | ||||||||||
|
|
|
|
|
|
|||||||
Deferred: |
||||||||||||
Federal |
524 | 353 | 238 | |||||||||
State |
107 | 72 | 48 | |||||||||
|
|
|
|
|
|
|||||||
631 | 425 | 286 | ||||||||||
|
|
|
|
|
|
|||||||
Change in valuation allowance related to realization of deferred tax assets |
(631 | ) | (425 | ) | (286 | ) | ||||||
|
|
|
|
|
|
|||||||
Actual tax expense |
$ | | $ | | $ | | ||||||
|
|
|
|
|
|
F-99
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
A reconciliation of actual income tax expense (benefit) in the consolidated financial statements to the expected tax benefit (computed by applying the statutory Federal income tax rate of 34% to loss before income taxes) is as follows:
(In Thousands) |
2012 | 2011 | 2010 | |||||||||
Computed expected tax benefit |
$ | 544 | $ | 361 | $ | 242 | ||||||
State income taxes, net of effect of Federal income taxes |
71 | 46 | 32 | |||||||||
Disallowed deductions |
16 | 18 | 12 | |||||||||
Reversal of valuation allowance related to deferred tax assets, net |
(631 | ) | (425 | ) | (286 | ) | ||||||
|
|
|
|
|
|
|||||||
Actual tax expense |
$ | | $ | | $ | | ||||||
|
|
|
|
|
|
At December 31, 2012, the Bank has a net operating loss carry-forward for tax purposes of approximately $14,775,000 which are available to reduce Federal income taxes. Unused carry forwards begin to expire in 2025.
As of December 31, 2012 and December 31, 2011, the Bank did not have any unrecognized tax benefits. The Bank does not expect the total amount of unrecognized tax benefits to significantly increase or decrease in the next 12 months. The Bank recognizes interest related to income tax matters as interest expense and penalties related to income tax matters as other noninterest expense and did not have any accrued interest and/or penalties at December 31, 2012 or 2011. No interest or penalties related to tax matters was incurred during 2012 or 2011. The Bank and its subsidiary are subject to U.S. federal income tax as well as income tax of the state of Tennessee.
(11) | COMMITMENTS AND CONTINGENCIES |
During November, 2004, the Bank entered into a ground lease for their branch location on Memorial Boulevard in Murfreesboro, Tennessee. The agreement provides for lease payments of $6,819 per month through November 2014. Thereafter, the lease payments will be adjusted every five years based on the change in the Consumer Price Index for the prior five-year lease term as provided by the Bureau of Labor Statistics of the United States Department of Labor. The ground lease expires in November 2024.
Future minimum payments under the remaining operating lease as of December 31, 2012 are as follows:
(In Thousands) |
Total | |||
Year Ending December 31, |
||||
2013 |
$ | 81 | ||
2014 |
82 | |||
2015 |
82 | |||
2016 |
82 | |||
2017 |
82 | |||
Thereafter |
559 | |||
|
|
|||
$ | 968 | |||
|
|
Rental payments under all leases totaled $82,000, $82,000 and $86,000 for the years ended December 31, 2012, 2011 and 2010, respectively.
F-100
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The Bank has lines of credit with other financial institutions, including the Federal Home Loan Bank, totaling $54.5 million. Included in these lines of credit is a fully-secured $25 million reverse repurchase line of credit with one financial institution. At December 31, 2012, no amounts were outstanding under these lines of credit.
(12) | FINANCIAL INSTRUMENTS WITH OFF-BALANCE-SHEET RISK |
The Bank is party to financial instruments with off-balance-sheet risk in the normal course of business to meet the financing needs of its customers. These financial instruments consist primarily of commitments to extend credit. These instruments involve, to varying degrees, elements of credit risk in excess of the amount recognized in the consolidated balance sheets. The contract or notional amounts of those instruments reflect the extent of involvement the Bank has in particular classes of financial instruments.
The Banks exposure to credit loss in the event of nonperformance by the other party to the financial instrument for commitments to extend credit is represented by the contractual notional amount of those instruments. The Bank uses the same credit policies in making commitments and conditional obligations as it does for on-balance-sheet instruments.
Contract or Notional Amount | ||||||||
(In Thousands) |
2012 | 2011 | ||||||
Financial instruments whose contract amount represent credit risk: |
||||||||
Unused commitments to extend credit |
$ | 41,391 | $ | 33,187 | ||||
Standby letters of credit |
677 | 1,226 | ||||||
|
|
|
|
|||||
Total |
$ | 42,068 | $ | 34,413 | ||||
|
|
|
|
Commitments to extend credit are agreements to lend to a customer as long as there is no violation of any condition established in the contract. Commitments generally have fixed expiration dates or other termination clauses and may require payment of a fee. Since many of the commitments are expected to be drawn upon, the total commitment amounts generally represent future cash requirements. The Bank evaluates each customers credit-worthiness on a case-by-case basis. The amount of collateral, if deemed necessary by the Bank upon extension of credit, is based on managements credit evaluation of the counterparty. Collateral normally consists of real property.
Standby letters of credit are conditional commitments issued by the Bank to guarantee the performance of a customer to a third party. Those guarantees are primarily issued to support public and private borrowing arrangements, including commercial paper, bond financing, and similar transactions. Most guarantees extend from one to two years. The credit risk involved in issuing letters of credit is essentially the same as that involved in extending loan facilities to customers. The fair value of standby letters of credit is estimated using the fees currently charged to enter into similar agreements, taking into account the remaining terms of the agreements, the likelihood of the counterparties drawing on such financial instruments and the present creditworthiness of such counterparties. Such commitments have been made on terms which are competitive in the markets in which the Bank operates, thus, the fair value of standby letters of credit equals the carrying value for the purposes of this disclosure. The maximum potential amount of future payments that the Bank could be required to make under the guarantees totaled $677,000 and $1,226,000 at December 31, 2012 and 2011, respectively.
F-101
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(13) | ON-BALANCE SHEET DERIVATIVE INSTRUMENTS AND HEDGING ACTIVITIES |
Derivative Loan Commitments
Mortgage loan commitments are referred to as derivative loan commitments if the loans that will result from the exercise of the commitments will be held for sale upon funding. The Bank enters into commitments to fund residential mortgage loans at specified times in the future, with the intention that these loans will subsequently be sold in the secondary market. A mortgage loan commitment binds the Bank to lend funds to a potential borrower at a specified interest rate and within a specified period of time, generally up to 60 days after inception of the rate lock.
Outstanding derivative loan commitments expose the Bank to the risk that the price of the loans arising from exercise of the loan commitments might decline from inception of the rate locks to funding of the loans due to increases in mortgage interest rates. If interest rates increase, the values of these loan commitments decrease. Conversely, if interest rates decrease, the values of these loan commitments increases. The notional amount of undesignated mortgage loan commitments was $3,812,000 and $1,834,000 at December 31, 2012 and 2011, respectively. The total fair value of such commitments was immaterial as of December 31, 2012 and 2011.
Forward Loan Sale Commitments
To protect against the price risk inherent in derivative loan commitments, the Bank utilizes best efforts forward loan sale commitments to mitigate the risk of potential decreases in the values of loans that would result from the exercise of the derivative loan commitments.
With a best efforts contract, the Bank commits to deliver an individual mortgage loan of a specified principal amount and quality to an investor if the loan to the underlying borrower closes. Generally, the price the investor will pay the seller for an individual loan is specified prior to the loans being funded (e.g., on the same day the lender commits to lend funds to a potential borrower).
The Bank expects that these forward loan sales commitments will experience changes in fair values opposite to the change in fair values of derivative loan commitments. The notional amount of undesignated forward loan sale commitments was $2,841,000 and $1,308,000 at December 31, 2012 and 2011, respectively. The total fair value of such commitments was immaterial as of December 31, 2012 and 2011.
(14) | CONCENTRATION OF CREDIT RISK |
Practically all of the Banks loans, commitments, and commercial and standby letters of credit have been granted to customers in the Banks market area. Practically all such customers are depositors of the Bank. The concentrations of credit by type of loan are set forth in note 2 to the consolidated financial statements.
At December 31, 2012 and 2011, the Bank had no cash and due from banks included in commercial bank deposits in excess of the Federal Deposit Insurance Corporation limit of $250,000 per institution.
F-102
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(15) | REGULATORY MATTERS AND RESTRICTIONS ON DIVIDENDS |
The Bank is subject to regulatory capital requirements administered by the Board of Governors of the Federal Reserve System and the TDFI. Failure to meet capital requirements can initiate certain mandatory and possibly additional discretionary actions by regulators that could, in that event, have a direct material effect on the institutions consolidated financial statements. The relevant regulations require the Bank to meet specific capital adequacy guidelines that involve quantitative measures of the Banks assets, liabilities and certain off-balance sheet items as calculated under regulatory accounting principles. The Banks capital classifications are also subject to qualitative judgments by the Regulators about components, risk weightings and other factors. Those qualitative judgments could also affect the Banks capital status and the amount of dividends the Bank may distribute.
Quantitative measures established by regulation to ensure capital adequacy require the Bank to maintain minimum amounts and ratios (set forth in the following table) of total and Tier 1 capital (as defined in the regulations) to risk-weighted assets (as defined) and of Tier 1 capital (as defined) to average assets (as defined). Management believes, as of December 31, 2012 and 2011, that the Bank meets all capital adequacy requirements to which they are subject.
As of December 31, 2012, the most recent notification from the Federal Deposit Insurance Corporation categorized the Bank as well-capitalized under the regulatory framework for prompt corrective action. To be categorized as well-capitalized, an institution must maintain minimum total risk-based, Tier 1 risk-based and Tier 1 leverage ratios set forth in the following tables. There are no conditions or events since the notification that management believes have changed the Banks category.
The Banks actual capital amounts and ratios as of December 31, 2012 and 2011 are also presented in the following table:
Actual |
Minimum Capital
Requirement |
Minimum To Be Well-
Capitalized Under Prompt Corrective Action Provisions |
||||||||||||||||||||||
(Dollars In Thousands) |
Amount | Ratio | Amount | Ratio | Amount | Ratio | ||||||||||||||||||
December 31, 2012: |
||||||||||||||||||||||||
Total capital to risk-weighted assets |
$ | 29,537 | 17.8 | % | $ | 13,302 | 8.0 | % | $ | 16,628 | 10.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Tier 1 capital to risk-weighted assets |
$ | 27,446 | 16.5 | % | $ | 6,651 | 4.0 | % | $ | 9,977 | 6.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Tier 1 capital to average assets |
$ | 27,446 | 11.2 | % | $ | 9,789 | 4.0 | % | $ | 12,236 | 5.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
December 31, 2011: |
||||||||||||||||||||||||
Total capital to risk-weighted assets |
$ | 27,838 | 17.3 | % | $ | 12,867 | 8.0 | % | $ | 16,084 | 10.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Tier 1 capital to risk-weighted assets |
$ | 25,802 | 16.0 | % | $ | 6,433 | 4.0 | % | $ | 9,650 | 6.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||
Tier 1 capital to average assets |
$ | 25,802 | 11.2 | % | $ | 9,256 | 4.0 | % | $ | 11,570 | 5.0 | % | ||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
F-103
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(16) | PREFERRED STOCK |
Since December 2009, MidSouth Bank has issued non-cumulative convertible preferred stock through two separate offerings: 1) Series 2009A Preferred Stock; and 2) Series 2011-A Preferred Stock. Both of these issues of preferred stock are discussed in the paragraphs that follow.
During December 2009, the Bank issued 415,190 shares of non-cumulative convertible Series 2009A Preferred Stock. The issuance resulted in additional capital of $2,027,000 net of stock issuance costs. During 2010, the Bank issued an additional 609,538 shares of non-cumulative convertible Series 2009A Preferred Stock. The 2010 issuance resulted in additional capital of $2,956,000, net of stock issuance costs. During 2011, 2,000 shares of Series 2009A Preferred Stock were converted to 4,000 shares of the Banks common stock. Since each share of this series of preferred stock is convertible into one share of common stock, there was no effect on the Banks total capital.
The liquidation preference for the Series 2009A Preferred Stock is $5.00 per share. The Series 2009A Preferred Stock is not redeemable. Each share of Series 2009A Preferred Stock will automatically convert into shares of the Banks common stock on March 31, 2015, subject to certain limitations. Each share of Series 2009A Preferred Stock is convertible into two shares of the Companys common stock. Additionally, anyone who purchased the Series 2009A Preferred Stock received one detachable warrant to purchase one share of the Banks common stock for every five shares of the Series 2009A Preferred Stock that they purchased. These detachable warrants and their related terms are discussed further in Footnote 17.
As of December 31, 2012, 2011 and 2010, there were 1,022,728, 1,022,728, and 1,024,728 shares of Series 2009A Preferred Stock outstanding, respectively.
On March 22, 2011, the Bank initiated an offering of shares of non-cumulative convertible Series 2011-A Preferred Stock that ended on June 30, 2011. The sales of this series of preferred stock resulted in the issuance of 242,350 shares of Series 2011-A Preferred Stock, which amounted to additional capital of $1,325,000, net of issuance costs. The liquidation preference for the Series 2011-A Preferred Stock is $5.00 per share, and this series of preferred stock is non-redeemable. Each share of Series 2011-A Preferred Stock is convertible into two shares of the Banks common stock by the stockholder at any time, but if not converted voluntarily by the stockholder, each share of this preferred stock will automatically convert into two shares of the Banks common stock on May 31, 2016, subject to certain limitations. Additionally, anyone who purchased the Series 2011-A Preferred Stock received one detachable warrant to purchase one share of the Banks common stock for every five shares of the Series 2011-A Preferred Stock that they purchased. These detachable warrants and their related terms are discussed further in Footnote 17. As of December 31, 2012 and 2011, there were 242,350 shares of Series 2011-A Preferred Stock outstanding.
F-104
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(17) | STOCK WARRANTS |
Detachable Warrants Issued with Preferred Stock
As part of the original offering of Series 2009A Preferred Stock, for every five shares of Series 2009A Preferred Stock purchased, a stockholder received one detachable warrant which provides the stockholder the ability to purchase one share of common stock. The purchase price for the common stock shares from these warrants is equal to 75% of the fully converted book value of the Banks common stock as of the previous quarter-end date (unaudited). The exercise price cannot, however, exceed $10.00 per share or be less than $2.50 per share. The exercise price for these warrants as of December 31, 2012 was $3.37 per share based on a fully converted book value of $4.49 as of December 31, 2012. For each recipient, the warrants received are required to be exercised by March 31, 2016. At that time the warrants will expire. During 2012, there were 6,369 Series 2009A warrants exercised. During 2011, there were 965 Series 2009A warrants exercised. During 2010, there were 121,901 Series 2009A warrants issued and 1,380 Series 2009A warrants exercised. There were 196,225, 202,594 and 203,559 Series 2009A warrants outstanding as of December 31, 2012, 2011 and 2010, respectively. As of December 31, 2012, 2011 and 2010, each Series 2009A detachable warrant had a fair value of $0.01 per share, $0.03 per share and $0.06 per share, respectively. The fair value of the outstanding detachable warrants that were issued in tandem with the Series 2009A Preferred Stock was determined to be approximately $15,000, $30,000 and $61,000 at December 31, 2012, 2011 and 2010, respectively.
In addition, as part of the offering of Series 2011-A Preferred Stock, for every five shares of Series 2011-A Preferred Stock purchased, the stockholder received one detachable warrant which provided the stockholder the ability to purchase one share of common stock. The purchase price for the common stock shares from these warrants is equal to 85% of the fully converted book value of the Banks common stock as of the previous quarter-end date (unaudited). The exercise price cannot, however, exceed $11.00 per share or be less than $2.75 per share. The exercise price for the Series 2011-A warrants as of December 31, 2012 was $3.82 per share based on a fully converted book value of $4.49 as of December 31, 2012. For each recipient, the warrants received are required to be exercised by May 31, 2017. At that time the warrants will expire. A total of 48,469 warrants were issued with the Series 2011-A Preferred Stock. During 2012, 928 Series 2011-A warrants were exercised, leaving 47,541 Series 2011-A warrants outstanding as of December 31, 2012. As of December 31, 2012, each Series 2011-A detachable warrant had a fair value of $0.02, and as of December 31, 2011 and 2010, each Series 2011-A detachable warrant had a fair value of $0.04 per share. The fair value of the detachable warrants that were issued in tandem with the Series 2011-A Preferred Stock was determined to be approximately $5,000 and $9,000 at December 31, 2012 and 2011, respectively.
The fair value of both series of the detachable warrants as of December 31, 2012 was estimated using the Black-Scholes warrant pricing model and the following assumptions:
Series 2009A
Warrants |
Series 2011-A
Warrants |
|||||||
Risk-free interest rate |
0.95 | % | 0.95 | % | ||||
Expected life of warrants |
3.25 years | 4.42 years | ||||||
Expected dividend yield |
0.00 | % | 0.00 | % | ||||
Expected volatility |
15 | % | 15 | % |
As of December 31, 2012, each Series 2009A detachable warrant had a fair value of $0.013 per share. The fair value of the Series 2009A Preferred Stock and the fair value of the detachable warrants were summed, and the carrying amounts for the Series 2009A Preferred Stock and the detachable warrants were calculated based on an allocation of the two fair value components. The aggregate fair value result for both the Series 2009A Preferred Stock outstanding and the related detachable warrants was calculated to be $5,114,000, with 0.3% of this aggregate total allocated to the detachable warrants and 99.7% allocated to the Series 2009A Preferred Stock. As a result of this allocation, the detachable warrants had a fair value of $15,000, and the Series 2009A Preferred Stock had a fair value of $5,098,000 as of December 31, 2012.
F-105
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
As of December 31, 2012, each Series 2011-A detachable warrant had a fair value of $0.02 per share. The fair value of the Series 2011-A Preferred Stock and the fair value of the detachable warrants were summed, and the carrying amounts for the Series 2011-A Preferred Stock and the detachable warrants were calculated based on an allocation of the two fair value components. The aggregate fair value result for both the Series 2011-A Preferred Stock and the related detachable warrants was calculated to be $1,333,000, with 0.4% of this aggregate total allocated to the detachable warrants and 99.6% allocated to the Series 2011-A Preferred Stock. As a result of this allocation, the detachable warrants had a fair value of $5,000, and the Series 2011-A Preferred Stock had a fair value of $1,328,000 as of December 31, 2012.
(18) | STOCK OPTION ARRANGEMENT |
In October, 2004, the stockholders of the Bank approved the MidSouth Bank 2004 Stock Option Arrangement (the Arrangement). The Arrangement provided for the granting of stock options, and authorized the issuance of common stock upon the exercise of such options, for up to 380,000 shares of common stock to employees and organizers of the Bank and up to 143,080 shares of common stock for future use as decided by the Board of Directors.
Under the Arrangement, stock option awards were granted in the form of incentive stock options or non-statutory stock options, and were generally exercisable for up to ten years following the date such option awards are granted. Exercise prices of incentive stock options must be equal to or greater than 100% of the fair market value of the common stock on the grant date and generally vest at the end of four years. Certain option awards provide for accelerated vesting if there is a change in control (as defined in the Arrangement).
The fair value of each option award is estimated on the date of grant using the Black-Scholes option pricing model that uses the assumptions noted in the following table. Expected volatility is based on the historical volatility of the Banks common stock and other factors. The Bank uses historical data to estimate option exercise and employee termination with the valuation model. The expected term of options granted represents the period of time that options granted are expected to be outstanding. The risk-free rate for periods within the contractual life of the option is based on the U.S. Treasury yield curve in effect at the time of grant. No options were granted during either 2012, 2011 or 2010.
During 2012, the Board of Directors of MidSouth Bank evaluated the Banks financial improvement since 2009, and to reward and incent the Banks personnel and directors for the progress made by the Bank during the recessionary period, the Board elected to change the exercise price of the options that were outstanding at November 30, 2012 to $3.65 per share. This was done through the issuance of amendments to the original stock option agreements, and the value was based upon a valuation of the Banks stock that was conducted by an independent third party located outside the Banks local market. As of November 30, 2012, there were 334,800 stock options repriced, and the options outstanding and exercisable at December, 31, 2012 are shown in the table below.
In addition to changing the exercise price of the options, the outstanding options became non-incentive stock options, and a new vesting schedule was established for the options. The new vesting schedule was established as 20% vesting each year on December 31, with the first vesting occurring on December 31, 2012 and the vesting period extending through December 31, 2016. The expiration date of the options was also changed to December 31, 2032.
F-106
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The following table is a summary of the Banks stock options as of December 31, 2012:
Option Activity |
Shares |
Weighted
Average Exercise Price Per Share |
Weighted
Average Remaining Contractual Maturity In Years |
Aggregate
Intrinsic Value (In 000s) |
||||||||||||
Outstanding at December 31, 2009 |
435,300 | $ | 9.75 | |||||||||||||
Granted |
| $ | | |||||||||||||
Exercised |
| $ | | |||||||||||||
Forfeited |
(50,500 | ) | $ | 10.00 | ||||||||||||
|
|
|
|
|||||||||||||
Outstanding at December 31, 2010 |
384,800 | $ | 9.71 | |||||||||||||
Granted |
| $ | | |||||||||||||
Exercised |
| $ | | |||||||||||||
Forfeited |
(19,000 | ) | $ | 9.47 | ||||||||||||
|
|
|
|
|||||||||||||
Outstanding at December 31, 2011 |
365,800 | $ | 9.72 | |||||||||||||
Granted |
| $ | | |||||||||||||
Exercised |
| $ | | |||||||||||||
Forfeited |
(31,000 | ) | $ | 10.00 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Outstanding at December 31, 2012 |
334,800 | $ | 3.65 | 20.0 | $ | 455 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Exercisable at December 31, 2012 |
66,960 | $ | 3.65 | 20.0 | $ | 91 | ||||||||||
|
|
|
|
|
|
|
|
There was no intrinsic value in stock options exercised during the years ended December 31, 2012 and 2011 since there were no options exercised during these periods. The weighted average grant-date fair value of options repriced during the year ended December 31, 2012 was $0.73. As of December 31, 2012, there were 146,580 stock options that were available to issue under the Arrangement.
As of December 31, 2012, there was $50,000 of total unrecognized compensation cost related to non-vested share-based compensation granted under the Arrangement. The cost is expected to be recognized over a weighted-average period of 2.5 years. The total fair value of shares vested during the years ended December 31, 2012 and 2011 was $49,000 and $13,000, respectively. Compensation cost recognized for the years ended December 31, 2012, 2011 and 2010 totaled $19,000, $11,000 and $16,000, respectively.
(19) | ADDITIONAL RELATED PARTY TRANSACTIONS |
In the normal course of business, the Bank utilizes legal and landscaping services which are provided by companies with board member relationships. During 2012, 2011 and 2010, the fees paid to these companies were insignificant.
(20) | RETIREMENT PLAN |
The Bank has in effect a 401(k) retirement plan that covers eligible employees. To participate in the plan an employee must have reached the age of 18. The provisions of the plan provide for both employee and employer contributions; however, the employer match was suspended beginning in April 2009 as part of the banks expense reduction initiative, and the suspension of the employer match continued through the year ended December 31, 2012. No amounts were contributed by the Bank to this plan during the years ended December 31, 2012, 2011 and 2010.
F-107
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(21) | EARNINGS PER COMMON SHARE |
ASC 260, Earnings Per Share , establishes uniform standards for computing and presenting earnings per share. The computation of basic earnings per share is based on the weighted average number of common shares outstanding during the period. For the Bank the computation of diluted earnings per share begins with basic earnings per share plus the effect of common shares contingently issuable from convertible preferred stock, stock options and warrants.
The following is a summary of the components comprising basic and diluted earnings (loss) per common share (EPS):
(In Thousands, Except Share and Per Share Amounts) |
2012 | 2011 | 2010 | |||||||||
Basic EPS Computation : |
||||||||||||
NumeratorEarnings for the year |
$ | 1,601 | $ | 1,062 | $ | 711 | ||||||
DenominatorWeighted average number of common shares outstanding |
3,853,321 | 3,846,611 | 3,842,567 | |||||||||
|
|
|
|
|
|
|||||||
Basic earnings per common share |
$ | 0.42 | $ | 0.28 | $ | 0.19 | ||||||
|
|
|
|
|
|
|||||||
Diluted EPS Computation: |
||||||||||||
NumeratorEarnings for the year |
$ | 1,601 | $ | 1,062 | $ | 711 | ||||||
Denominator: |
||||||||||||
Weighted average number of common shares outstanding |
3,853,321 | 3,846,611 | 3,842,567 | |||||||||
Dilutive effect of preferred stock |
2,530,156 | 2,392,057 | 1,713,096 | |||||||||
Dilutive effect of stock options |
93,088 | | | |||||||||
Dilutive effect of warrants |
76,195 | | | |||||||||
|
|
|
|
|
|
|||||||
6,552,760 | 6,238,668 | 5,555,663 | ||||||||||
|
|
|
|
|
|
|||||||
Diluted earnings per common share |
$ | 0.24 | $ | 0.17 | $ | 0.13 | ||||||
|
|
|
|
|
|
The effects of stock option exercises and warrant purchases in the diluted earnings per share calculation were considered to be zero for 2011 and 2010 since the impact of the exercise of these derivative securities would be accretive and, thus, anti-dilutive due to average exercise prices exceeding the market values in the cases of both the stock options and the warrants.
F-108
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
(22) | FAIR VALUE |
The Bank applies ASC 820, Fair Value Measurements and Disclosures , which defines fair value as an exit price, representing the amount that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants. Under ASC 820, fair value measurements are not adjusted for transaction costs. ASC 820 establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (level 1 measurements) and the lowest priority to unobservable inputs (level 3 measurements). The three levels of the fair value hierarchy under ASC 820 are described below:
Basis of Fair Value Measurement:
Level 1 Unadjusted quoted prices in active markets that are accessible at the measurement date for identical, unrestricted assets.
Level 2 Significant other observable inputs other than Level 1 prices such as quoted prices in markets that are not active, quoted prices for similar assets, or other inputs that are observable, either directly or indirectly, for substantially the full term of the asset.
Level 3 Significant unobservable inputs that reflect a reporting entitys own assumptions about the assumptions that market participants would use in pricing an asset or liability.
A financial instruments level within the fair value hierarchy is based on the lowest level of input that is significant to the fair value measurement.
The fair values of securities available-for-sale are generally determined by matrix pricing, which is a mathematical technique widely used in the industry to value debt securities without relying exclusively on quoted prices for the specific securities but rather by relying on the securities relationship to other benchmark quoted securities (Level 2 inputs).
The fair value of loans held for sale is based upon binding contracts and quotes from third party investors (Level 2 inputs).
Impaired loans are evaluated and valued at the time the loan is identified as impaired, at the lower of cost or fair value. Fair value is measured based on the value of the collateral securing these loans and is classified at a level 3 in the fair value hierarchy. Collateral may be real estate and/or business assets including equipment, inventory and/or accounts receivable and is determined based on appraisals performed by qualified licensed appraisers hired by the Bank. Appraised and reported values may be discounted based on managements historical knowledge, changes in market conditions from the time of valuation, and/or managements expertise and knowledge of the client and clients business. Such discounts are typically significant and result in a Level 3 classification of the inputs for determining fair value. Impaired loans are reviewed and evaluated on at least a quarterly basis for additional impairment and adjusted accordingly, based on the same factors identified above.
Level 3 is for positions that are not traded in active markets or are subject to transfer restrictions, and/or where valuations are adjusted to reflect illiquidity and/or non-transferability. Such adjustments are generally based on available market evidence. In the absence of such evidence, managements best estimate is used.
F-109
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Financial Assets and Liabilities Measured at Fair Value on a Recurring Basis
Financial assets and liabilities measured at fair value on a recurring basis at December 31, 2012 are summarized below:
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2012 |
|||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2012 |
||||||||||||||||
Securities available-for-sale |
$ | 2,260 | $ | 67,665 | $ | | $ | 69,925 |
Financial assets and liabilities measured at fair value on a recurring basis at December 31, 2011 are summarized below:
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2011 |
|||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2011 |
||||||||||||||||
Securities available-for-sale |
$ | 13,749 | $ | 50,205 | $ | 2,221 | $ | 66,175 |
The table below presents a reconciliation and income statement classification of gains and losses for all financial assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the year ended December 31, 2012 and 2011:
Fair Value Measurements Using Significant Unobservable Inputs (Level 3)
Carrying Value | ||||||||
(In Thousands) |
2012 | 2011 | ||||||
Opening Balance, January 1 |
$ | 2,221 | $ | | ||||
Total unrealized gains (losses) included in: |
||||||||
Net Income |
| | ||||||
Other comprehensive income |
49 | 1 | ||||||
Purchases, sales, issuances and settlements, net |
| 2,220 | ||||||
Transfers in and (out) of level three |
(2,270 | ) | | |||||
|
|
|
|
|||||
Ending Balance, December 31 |
$ | | $ | 2,221 | ||||
|
|
|
|
F-110
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Financial Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
The following represent financial assets and liabilities measured at fair value on a non-recurring basis as of December 31, 2012. The valuation methodology used to measure the fair value of these loans is described earlier in this footnote.
(In thousands) |
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2012 |
||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2012 |
||||||||||||||||
Impaired loans, net |
$ | | $ | | $ | 6,790 | $ | 6,790 | ||||||||
Loans held for sale |
$ | | $ | 2,841 | $ | | $ | 2,841 |
The following represent financial assets and liabilities measured at fair value on a non-recurring basis as of December 31, 2011. The valuation methodology used to measure the fair value of these loans is described earlier in this footnote.
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2011 |
|||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2011 |
||||||||||||||||
Impaired loans, net |
$ | | $ | | $ | 11,144 | $ | 11,144 | ||||||||
Loans held for sale |
$ | | $ | 1,308 | $ | | $ | 1,308 |
Loans held for sale, which are carried at the lower of cost or fair value, did not have an impairment charge for 2012 or 2011.
Impaired loans, which are measured for impairment using the fair value of the collateral for collateral dependent loans, had carrying amounts of $7,723,000 and $12,663,000 as of December 31, 2012 and 2011, respectively, with valuation allowances of $933,000 and $1,519,000 as of December 31, 2012 and 2011, respectively.
F-111
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Non-financial Assets and Liabilities Measured at Fair Value on a Non-Recurring Basis
The following represent nonfinancial assets and liabilities measured at fair value on a non-recurring basis as of December 31, 2012. The valuation methodology used to measure the fair value of foreclosed assets is described below.
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2012 |
|||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2012 |
||||||||||||||||
Foreclosed assets |
$ | | $ | | $ | 800 | $ | 800 |
The following represent nonfinancial assets and liabilities measured at fair value on a non-recurring basis as of December 31, 2011. The valuation methodology used to measure the fair value of foreclosed assets is described below.
Quoted
Prices in Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
Carrying
Value as of December 31, 2011 |
|||||||||||||
(In thousands) | ||||||||||||||||
Assets at December 31, 2011 |
||||||||||||||||
Foreclosed assets |
$ | | $ | | $ | 1,379 | $ | 1,379 |
Foreclosed assets are valued at the time the loan is foreclosed upon and the asset is transferred to foreclosed assets. The value is based primarily on third party appraisals, less costs to sell. The appraisals are generally discounted based on managements historical knowledge, changes in market conditions from the time of valuation, and/or managements expertise and knowledge of the client and the clients business. Such discounts are typically significant and result in a Level 3 classification of inputs for determining fair value. Foreclosed assets are reviewed and evaluated on at least an annual basis for additional impairment and adjusted accordingly, based on the same factors identified above. Foreclosed assets had a carrying amount of $800,000 at December 31, 2012, which is made up of an outstanding balance of $1,200,000 with a $400,000 valuation allowance. Foreclosed assets had a carrying amount of $1,379,000 at December 31, 2011, which is made up of an outstanding balance of $1,379,000 with no valuation allowance. Changes in the valuation allowance on foreclosed assets outstanding at December 31, 2012 resulted in a write-down of $400,000 in addition to a write-down of $20,000 that had been recorded earlier in 2012.
Cash and short-term investments
For those short-term instruments, the carrying amount is a reasonable estimate of fair value.
F-112
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Certificates of Deposit at Other Financial Institutions
Fair values for certificates of deposit at other financial institutions are estimated using a discounted cash flow analysis that applies interest currently being offered on certificates to a schedule of aggregated contractual maturities on such instruments.
Securities
The carrying amounts for short-term securities approximate fair value because they mature in 90 days or less and do not present unanticipated credit concerns. The fair value of longer-term securities and mortgage-backed securities is estimated based on bid prices published in financial newspapers or bid quotations received from securities dealers. The fair value of certain state and municipal securities is not readily available through market sources other than dealer quotations, so fair value estimates are based on quoted market prices of similar instruments, adjusted for differences between the quoted instruments and the instruments being valued.
Accounting standards specify that fair values should be calculated based on the value of one unit without regard to any premium or discount that may result from concentrations of ownership of a financial instrument, possible tax ramifications, or estimated transaction costs. Accordingly, these considerations have not been incorporated into the fair value estimates.
Loans
Fair values are estimated for portfolios of loans with similar financial characteristics. Loans are segregated by type such as commercial, mortgage and other consumer. Each loan category is further segmented into fixed and adjustable rate interest terms.
The fair value of the various categories of loans is estimated by discounting the future cash flows using the current rates at which similar loans would be made to borrowers with similar credit ratings and for the same remaining average estimated maturities.
The estimated maturity for mortgages is modified from the contractual terms to give consideration to managements experience with prepayments. Management has made estimates of fair value discount rates that it believes to be reasonable. However, because there is no market for many of these financial instruments, management has no basis to determine whether the fair value presented below would be indicative of the value negotiated in an actual sale.
The value of the loan portfolio is also discounted in consideration of the credit quality of the loan portfolio as would be the case between willing buyers and sellers. Particular emphasis has been given to loans on the Banks internal watch list. Valuation of these loans is based upon borrower performance, collateral values (including external appraisals), etc.
Loans Held for Sale
These instruments are carried in the consolidated balance sheet at the lower of cost or market value. The fair values of these instruments are based on subsequent liquidation values of the instruments which did not result in any significant gains or losses.
F-113
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Deposit Liabilities
The fair value of demand deposits, savings accounts and certain money market deposits is the amount payable on demand at the reporting date. The fair value of fixed-maturity certificates of deposit is estimated using the rates currently offered for deposits of similar remaining maturities. Under accounting standards the fair value estimates for deposits do not include the benefit that results from the low cost funding provided by the deposit liabilities compared to the cost of borrowing funds in the market.
Federal Funds Purchased and Sold
The carrying amounts approximate fair values as Federal funds are overnight borrowings or investments.
Advances from Federal Home Loan Bank
Short-Term Advances
The carrying amounts of short-term advances approximate fair value as they mature within 90 days.
Long-Term Advances
The fair values of the Banks long-term advances are estimated using discounted cash flow analyses based on the Banks current incremental borrowing rates for similar types of borrowing arrangements.
Commitments to Extend Credit, Standby Letters of Credit and Financial Guarantees Written
Loan commitments are made to customers generally for a period not to exceed one year and at the prevailing interest rates in effect at the time the loan is closed. Commitments to extend credit related to construction loans are made for a period not to exceed one year with interest rates at the current market rate at the date of closing. In addition, standby letters of credit are issued for periods extending from one to two years with rates to be determined at the date the letter of credit is funded. Fees are only charged for the construction loans and the standby letters of credit and the amounts unearned at December 31, 2012, are insignificant. Accordingly, these commitments have no carrying value and management estimates the commitments to have no significant fair value.
F-114
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
The carrying values and estimated fair values of the Banks remaining financial instruments at December 31, 2012 and 2011 are as follows:
(In Thousands) |
Carrying
amount |
Estimated
fair value |
Quoted
market prices in an active market (Level 1) |
Models with
significant observable market parameters (Level 2) |
Models with
Significant unobservable market Parameters (Level 3) |
|||||||||||||||
December 31, 2012 |
||||||||||||||||||||
Financial assets: |
||||||||||||||||||||
Certificates of deposit at other financial institutions |
$ | 1,482 | $ | 1,536 | $ | | $ | | $ | 1,536 | ||||||||||
Restricted equity securities |
1,550 | 1,550 | | | 1,550 | |||||||||||||||
Loans, net of allowance |
137,790 | 137,762 | | | 137,762 | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Deposits |
221,752 | 221,949 | | | 221,949 | |||||||||||||||
Securities sold under agreement to repurchase |
1,044 | 1,044 | | | 1,044 | |||||||||||||||
Off balance sheet instruments: |
||||||||||||||||||||
Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | | |||||||||||||||
December 31, 2011 |
||||||||||||||||||||
Financial assets: |
||||||||||||||||||||
Restricted equity securities |
1,501 | 1,501 | | | 1,501 | |||||||||||||||
Loans, net of allowance |
137,143 | 137,716 | | | 137,716 | |||||||||||||||
Financial liabilities: |
||||||||||||||||||||
Deposits |
204,632 | 204,692 | | | 204,692 | |||||||||||||||
Securities sold under agreement to repurchase |
6,552 | 6,552 | | | 6,552 | |||||||||||||||
Off balance sheet instruments: |
||||||||||||||||||||
Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | |
Limitations
Fair value estimates are made at a specific point in time, based on relevant market information and information about the financial instruments. These estimates do not reflect any premium or discount that could result from offering for sale at one time the Banks entire holdings of a particular financial instrument. Because no market exists for a significant portion of the Banks financial instruments, fair value estimates are based on judgments regarding future expected loss experience, current economic conditions, risk characteristics of various financial instruments, and other factors. These estimates are subjective in nature and involve uncertainties and matters of significant judgment and therefore cannot be determined with precision. Changes in assumptions could significantly affect the estimates.
F-115
MIDSOUTH BANK
Notes to Consolidated Financial Statements
December 31, 2012, 2011 and 2010
Fair value estimates are based on estimating on-and-off-balance sheet financial instruments without attempting to estimate the value of anticipated future business and the value of assets and liabilities that are not considered financial instruments. Other significant assets and liabilities that are not considered financial assets or liabilities include deferred tax assets and liabilities and property, plant and equipment. In addition, the tax ramifications related to the realization of the unrealized gains and losses can have a significant effect on fair value estimates and have not been considered in the estimates.
(23) | QUARTERLY FINANCIAL DATA (UNAUDITED) |
Selected quarterly results of operations for the four quarters ended December 31, 2012 and 2011 are as follows:
(In Thousands, except per share data) | ||||||||||||||||||||||||||||||||
2012 | 2011 | |||||||||||||||||||||||||||||||
Fourth
Quarter |
Third
Quarter |
Second
Quarter |
First
Quarter |
Fourth
Quarter |
Third
Quarter |
Second
Quarter |
First
Quarter |
|||||||||||||||||||||||||
Interest income |
$ | 2,388 | $ | 2,458 | $ | 2,388 | $ | 2,340 | $ | 2,390 | $ | 2,510 | $ | 2,578 | $ | 2,603 | ||||||||||||||||
Net interest income |
2,112 | 2,161 | 2,070 | 2,000 | 2,030 | 2,122 | 2,156 | 2,133 | ||||||||||||||||||||||||
Provision for loan losses |
(470 | ) | | | | 100 | | | 300 | |||||||||||||||||||||||
Earnings before income taxes |
388 | 443 | 394 | 376 | 125 | 572 | 283 | 82 | ||||||||||||||||||||||||
Net earnings |
388 | 443 | 394 | 376 | 125 | 572 | 283 | 82 | ||||||||||||||||||||||||
Basic earnings per common share |
0.11 | 0.11 | 0.10 | 0.10 | 0.03 | 0.15 | 0.07 | 0.02 | ||||||||||||||||||||||||
Diluted earnings per common share |
0.05 | 0.07 | 0.06 | 0.06 | 0.02 | 0.09 | 0.05 | 0.01 |
F-116
MIDSOUTH BANK
MIDSOUTH BANK
CONSOLIDATED INTERIM FINANCIAL STATEMENTS
SEPTEMBER 30, 2013 AND 2012
F-117
MIDSOUTH BANK
September 30, 2013 and December 31, 2012
(Unaudited)
September 30,
2013 |
December 31,
2012 |
|||||||
(In thousands, except share amounts) |
||||||||
Assets | ||||||||
Loans, less allowance for loan losses of $2,860 and $3,088, respectively |
$ | 152,121 | $ | 137,790 | ||||
Securities available-for-sale, at market (amortized cost of $74,052 and $68,703, respectively) |
73,086 | 69,925 | ||||||
Loans held for sale |
1,558 | 2,841 | ||||||
Restricted equity securities |
1,540 | 1,550 | ||||||
Certificates of deposit at other financial institutions |
1,732 | 1,482 | ||||||
Interest-bearing accounts at other financial institutions |
15,199 | 25,764 | ||||||
|
|
|
|
|||||
Total earning assets |
245,236 | 239,352 | ||||||
|
|
|
|
|||||
Cash and due from banks |
1,954 | 1,598 | ||||||
Bank premises and equipment, net |
8,653 | 8,865 | ||||||
Bank owned life insurance |
3,060 | | ||||||
Accrued interest receivable |
788 | 745 | ||||||
Foreclosed assets |
800 | 800 | ||||||
Prepaid FDIC insurance assessments |
| 546 | ||||||
Other assets |
538 | 393 | ||||||
|
|
|
|
|||||
Total assets |
$ | 261,029 | $ | 252,299 | ||||
|
|
|
|
|||||
Liabilities and Stockholders Equity | ||||||||
Deposits |
$ | 231,444 | $ | 221,752 | ||||
Securities sold under agreement to repurchase |
626 | 1,044 | ||||||
Accrued interest payable |
39 | 52 | ||||||
Accounts payable and other liabilities |
927 | 783 | ||||||
|
|
|
|
|||||
Total liabilities |
233,036 | 223,631 | ||||||
|
|
|
|
|||||
COMMITMENTS AND CONTINGENCIES |
||||||||
Stockholders equity: |
||||||||
Preferred stock, par value $1 per share, authorized 20,000,000 shares, 1,259,907 and 1,265,078 issued and outstanding, respectively |
1,260 | 1,265 | ||||||
Common stock, par value $1 per share, authorized 20,000,000 shares, 3,871,893 and 3,855,577 shares issued and outstanding, respectively |
3,872 | 3,856 | ||||||
Additional paid-in capital |
39,845 | 39,825 | ||||||
Deficit |
(16,018 | ) | (17,500 | ) | ||||
Accumulated other comprehensive (loss) income |
(966 | ) | 1,222 | |||||
|
|
|
|
|||||
Total stockholders equity |
27,993 | 28,668 | ||||||
|
|
|
|
|||||
Total liabilities and stockholders equity |
$ | 261,029 | $ | 252,299 | ||||
|
|
|
|
F-118
MIDSOUTH BANK
Consolidated Statements of Earnings
Three and Nine Months Ended September 30, 2013 and 2012
(Unaudited)
Three Months Ended September 30, |
Nine Months Ended September 30, |
|||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
(In thousands, except per share amounts) | ||||||||||||||||
Interest income: |
||||||||||||||||
Interest and fees on loans |
$ | 2,118 | $ | 2,032 | $ | 6,153 | $ | 5,972 | ||||||||
Interest and dividends on taxable securities |
349 | 396 | 986 | 1,125 | ||||||||||||
Interest on balances due from depository institutions |
19 | 10 | 47 | 29 | ||||||||||||
Interest and dividends on restricted equity securities |
20 | 20 | 61 | 60 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total interest income |
2,506 | 2,458 | 7,247 | 7,186 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Interest expense: |
||||||||||||||||
Interest on negotiable order of withdrawal accounts |
14 | 13 | 45 | 46 | ||||||||||||
Interest on money market and other savings accounts |
60 | 53 | 168 | 168 | ||||||||||||
Interest on certificates of deposit |
146 | 229 | 483 | 735 | ||||||||||||
Interest on Federal funds purchased and securities sold under agreement to repurchase |
| 2 | 1 | 6 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total interest expense |
220 | 297 | 697 | 955 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net interest income before provision for loan losses |
2,286 | 2,161 | 6,550 | 6,231 | ||||||||||||
Provision for loan losses |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Net interest income after provision for loan losses |
2,286 | 2,161 | 6,550 | 6,231 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Non-interest income: |
||||||||||||||||
Service charges on deposits |
87 | 101 | 264 | 300 | ||||||||||||
Other fees and commissions |
194 | 136 | 532 | 451 | ||||||||||||
Fees on mortgage originations, net |
275 | 227 | 1,161 | 419 | ||||||||||||
Fees from brokerage operations, net |
177 | 156 | 489 | 442 | ||||||||||||
Gain on sale of foreclosed assets, net |
1 | | 6 | | ||||||||||||
Gain on sale of available for sale securities |
| 42 | | 42 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest income |
734 | 662 | 2,452 | 1,654 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Non-interest expense: |
||||||||||||||||
Employee salaries and benefits |
1,417 | 1,297 | 4,316 | 3,566 | ||||||||||||
Occupancy expenses, net |
183 | 204 | 533 | 556 | ||||||||||||
Furniture and equipment expense |
118 | 96 | 310 | 277 | ||||||||||||
FDIC insurance |
48 | 51 | 154 | 160 | ||||||||||||
Advertising expense |
51 | 31 | 127 | 115 | ||||||||||||
Professional fees |
169 | 139 | 435 | 443 | ||||||||||||
Data processing expense |
145 | 121 | 433 | 364 | ||||||||||||
Directors fees |
33 | | 99 | | ||||||||||||
Loss on foreclosed assets, net |
| 17 | | 31 | ||||||||||||
Loss on sale of available for sale securities, net |
6 | | 6 | | ||||||||||||
Other operating expenses |
336 | 424 | 1,107 | 1,160 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Total non-interest expense |
2,506 | 2,380 | 7,520 | 6,672 | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Earnings before income taxes |
514 | 443 | 1,482 | 1,213 | ||||||||||||
Income taxes |
| | | | ||||||||||||
|
|
|
|
|
|
|
|
|||||||||
Earnings |
$ | 514 | $ | 443 | $ | 1,482 | $ | 1,213 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Basic earnings per common share |
$ | 0.13 | $ | 0.11 | $ | 0.38 | $ | 0.31 | ||||||||
|
|
|
|
|
|
|
|
|||||||||
Diluted earnings per common share |
$ | 0.08 | $ | 0.07 | $ | 0.23 | $ | 0.19 | ||||||||
|
|
|
|
|
|
|
|
F-119
MIDSOUTH BANK
Consolidated Statements of Comprehensive Earnings (Loss)
Three and Nine Months Ended September 30, 2013 and 2012
(Unaudited)
Three Months Ended | Nine Months Ended | |||||||||||||||
September 30, | September 30, | |||||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
(In Thousands) | ||||||||||||||||
Earnings |
$ | 514 | $ | 443 | $ | 1,482 | $ | 1,213 | ||||||||
Other comprehensive earnings (loss): |
||||||||||||||||
Change in unrealized gains (losses) on available-for-sale securities arising during period |
(221 | ) | 83 | (2,194 | ) | 147 | ||||||||||
Less: Reclassification adjustment for losses (gains) included in earnings |
6 | (42 | ) | 6 | (42 | ) | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Other comprehensive (loss) earnings |
(215 | ) | 41 | (2,188 | ) | 105 | ||||||||||
|
|
|
|
|
|
|
|
|||||||||
Comprehensive earnings (loss) |
$ | 299 | $ | 484 | $ | (706 | ) | $ | 1,318 | |||||||
|
|
|
|
|
|
|
|
F-120
MIDSOUTH BANK
Consolidated Statements of Cash Flows
Nine Months Ended September 30, 2013 and 2012
Increase (Decrease) in Cash and Cash Equivalents
(Unaudited)
2013 | 2012 | |||||||
(In Thousands) | ||||||||
Cash flows from operating activities: |
||||||||
Interest received |
$ | 8,164 | $ | 7,840 | ||||
Fees received |
1,225 | 1,185 | ||||||
Proceeds from sale of loans held for sale |
45,074 | 22,301 | ||||||
Origination of loans held for sale |
(42,630 | ) | (20,754 | ) | ||||
Interest paid |
(710 | ) | (970 | ) | ||||
Cash paid to suppliers and employees |
(6,585 | ) | (5,953 | ) | ||||
|
|
|
|
|||||
Net cash provided by operating activities |
4,538 | 3,649 | ||||||
|
|
|
|
|||||
Cash flows from investing activities: |
||||||||
Purchase of available-for-sale securities |
(26,731 | ) | (26,353 | ) | ||||
Sales of available-for-sale securities |
8,167 | 2,161 | ||||||
Repayments of mortgage-backed securities |
12,249 | 11,038 | ||||||
Sale of restricted equity securities |
45 | | ||||||
Purchase of restricted equity securities |
(35 | ) | (34 | ) | ||||
Maturities of available-for-sale securities |
| 2,000 | ||||||
Repayments on loans, net of loans made to customers |
(14,331 | ) | (4,301 | ) | ||||
Net increases in certificates of deposit at other financial institutions |
(250 | ) | (1,482 | ) | ||||
Proceeds from insurance claim on premises |
35 | 32 | ||||||
Capitalized costs related to foreclosed assets |
| (62 | ) | |||||
Proceeds from sales of foreclosed assets |
| 333 | ||||||
Purchase of bank-owned life insurance |
(3,000 | ) | | |||||
Purchase of premises and equipment |
(192 | ) | (476 | ) | ||||
|
|
|
|
|||||
Net cash used in investing activities |
(24,043 | ) | (17,144 | ) | ||||
|
|
|
|
|||||
Cash flows from financing activities: |
||||||||
Net increase in non-interest-bearing, savings and NOW deposit accounts |
16,226 | 8,384 | ||||||
Net decrease in time deposits |
(6,570 | ) | (3,650 | ) | ||||
Net increase in mortgage escrow deposits |
36 | 37 | ||||||
Decrease in securities sold under agreement to repurchase |
(418 | ) | (5,103 | ) | ||||
Proceeds from sale of common stock |
22 | 22 | ||||||
|
|
|
|
|||||
Net cash provided by (used in) financing activities |
9,296 | (310 | ) | |||||
|
|
|
|
|||||
Net decrease in cash and cash equivalents |
(10,209 | ) | (13,805 | ) | ||||
Cash and cash equivalents at beginning of period |
27,362 | 20,669 | ||||||
|
|
|
|
|||||
Cash and cash equivalents at end of period |
$ | 17,153 | $ | 6,864 | ||||
|
|
|
|
F-121
MIDSOUTH BANK
Consolidated Statements of Cash Flows, Continued
Nine Months Ended September 30, 2013 and 2012
Increase (Decrease) in Cash and Cash Equivalents
(Unaudited)
2013 | 2012 | |||||||
(In Thousands) | ||||||||
Reconciliation of earnings to net cash provided by operating activities: |
||||||||
Earnings |
$ | 1,482 | $ | 1,213 | ||||
Adjustments to reconcile earnings to net cash provided by operating activities: |
||||||||
Depreciation |
369 | 326 | ||||||
Loss on sale of foreclosed assets |
| 11 | ||||||
Valuation adjustment on foreclosed assets |
| 20 | ||||||
Loss (gain) on sale of available-for-sale securities |
6 | (42 | ) | |||||
Stock option compensation expense |
9 | 5 | ||||||
Amortization and accretion, net |
960 | 813 | ||||||
Decrease in loans held for sale |
1,283 | 1,128 | ||||||
Increase in accrued interest receivable |
(43 | ) | (160 | ) | ||||
Decrease in other assets |
341 | 199 | ||||||
Decrease in accrued interest payable |
(13 | ) | (15 | ) | ||||
Increase in accounts payable and other liabilities |
150 | 159 | ||||||
Deferred gain realized on foreclosed assets |
(6 | ) | (8 | ) | ||||
|
|
|
|
|||||
Total adjustments |
3,056 | 2,436 | ||||||
|
|
|
|
|||||
Net cash provided by operating activities |
$ | 4,538 | $ | 3,649 | ||||
|
|
|
|
|||||
Supplemental Schedule of Non-Cash Activities: |
||||||||
Unrealized (loss) gain in value of securities available-for-sale |
$ | (2,188 | ) | $ | 105 | |||
|
|
|
|
|||||
Transfer of loans to foreclosed assets |
$ | | $ | 335 | ||||
|
|
|
|
F-122
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
The accompanying consolidated financial statements have been prepared, without audit, pursuant to the rules and regulations of the Board of Governors of the Federal Reserve System. Certain information and footnote disclosures normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States of America have been condensed or omitted pursuant to such rules and regulations. The consolidated financial statements include the financial results of MidSouth Bank and its wholly-owned subsidiary, MSB Services, Inc. (collectively, the Bank). All intercompany accounts have been eliminated in consolidation.
In the opinion of management, the consolidated financial statements contain all adjustments (consisting of only normal recurring adjustments) and disclosures necessary to summarize fairly the financial position of the Bank as of September 30, 2013 and December 31, 2012 and the results of operations for the three and nine months ended September 30, 2013 and 2012, comprehensive earnings (loss) for the three and nine months ended September 30, 2013 and 2012 and changes in cash flows for the nine months ended September 30, 2013 and 2012. The interim consolidated financial statements should be read in conjunction with the notes to the consolidated financial statements presented elsewhere in this joint proxy statement/prospectus. The results for interim periods are not necessarily indicative of results to be expected for the complete fiscal year.
Certain reclassifications have been made to 2012 financial information to conform to the 2013 presentation.
Critical Accounting Policies
Our accounting and reporting policies are in accordance with accounting principles generally accepted in the United States of America as defined by the Public Company Accounting Oversight Board and conform to general practices accepted within the banking industry. Our most significant accounting policies are presented in the notes to the audited consolidated financial statements presented elsewhere in this joint proxy statement/prospectus. Certain accounting policies require management to make significant estimates and assumptions that have a material effect on the carrying value of certain assets and liabilities, and we consider these to be critical accounting policies. The estimates and assumptions used are based on historical experience and other factors that management believes to be reasonable under the circumstances. Actual results could differ significantly from these estimates and assumptions, which could have a material impact on the carrying value of assets and liabilities at the balance sheet dates and on our results of operations for the reporting periods.
F-123
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Allowance for Loan Losses
The following tables document the activity in, and allocation of, the allowance for loan losses by portfolio segment at September 30, 2013, as follows:
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||||||
Beginning balance (1/1/2013) |
$ | 549 | $ | 964 | $ | 519 | $ | 1,006 | $ | 13 | $ | 37 | $ | 3,088 | ||||||||||||||
Charge-offs |
(437 | ) | | (60 | ) | (35 | ) | | (11 | ) | (543 | ) | ||||||||||||||||
Recoveries |
181 | | 8 | 43 | | 83 | 315 | |||||||||||||||||||||
Provisions |
250 | 224 | (130 | ) | (248 | ) | 11 | (107 | ) | | ||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Ending balance (9/30/2013) |
$ | 543 | $ | 1,188 | $ | 337 | $ | 766 | $ | 24 | $ | 2 | $ | 2,860 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Specific reserves impaired loans |
$ | 278 | $ | 81 | $ | 80 | $ | 29 | $ | | $ | | $ | 468 | ||||||||||||||
General reserves |
265 | 1,107 | 257 | 737 | 24 | 2 | 2,392 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 543 | $ | 1,188 | $ | 337 | $ | 766 | $ | 24 | $ | 2 | $ | 2,860 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Loans individually evaluated for impairment |
$ | 1,613 | $ | 1,600 | $ | 1,295 | $ | 1,196 | $ | | $ | | $ | 5,704 | ||||||||||||||
Loans collectively evaluated for impairment |
16,834 | 71,197 | 40,419 | 18,319 | 1,058 | 1,450 | 149,277 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 18,447 | $ | 72,797 | $ | 41,714 | $ | 19,515 | $ | 1,058 | $ | 1,450 | $ | 154,981 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following tables document the activity in, and allocation of, the allowance for loan losses by portfolio segment at December 31, 2012 was as follows:
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Allowance for loan losses: |
||||||||||||||||||||||||||||
Beginning balance (1/1/2012) |
$ | 407 | $ | 1,012 | $ | 739 | $ | 1,068 | $ | 7 | $ | 50 | $ | 3,283 | ||||||||||||||
Charge-offs |
(80 | ) | (257 | ) | (120 | ) | (78 | ) | | (19 | ) | (554 | ) | |||||||||||||||
Recoveries |
686 | | 39 | 63 | | 41 | 829 | |||||||||||||||||||||
Provisions |
(464 | ) | 209 | (139 | ) | (47 | ) | 6 | (35 | ) | (470 | ) | ||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Ending balance (12/31/2012) |
$ | 549 | $ | 964 | $ | 519 | $ | 1,006 | $ | 13 | $ | 37 | $ | 3,088 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Specific reserves Impaired loans |
$ | 321 | $ | 263 | $ | 186 | $ | 163 | $ | | $ | | $ | 933 | ||||||||||||||
General reserves |
228 | 701 | 333 | 843 | 13 | 37 | 2,155 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 549 | $ | 964 | $ | 519 | $ | 1,006 | $ | 13 | $ | 37 | $ | 3,088 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F-124
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
(In Thousands) |
Commercial,
financial and agricultural |
Commercial
Real Estate |
Residential
Real Estate |
Construction
and Land Development |
Multifamily
Real Estate |
Consumer
and Other |
Total | |||||||||||||||||||||
Loans individually evaluated for impairment |
$ | 2,037 | $ | 2,324 | $ | 1,967 | $ | 1,395 | $ | | $ | | $ | 7,723 | ||||||||||||||
Loans collectively evaluated for impairment |
14,652 | 58,998 | 38,600 | 15,176 | 1,088 | 4,641 | 133,155 | |||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||
Total |
$ | 16,689 | $ | 61,322 | $ | 40,567 | $ | 16,571 | $ | 1,088 | $ | 4,641 | $ | 140,878 | ||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The provision for loan losses represents a charge to earnings necessary, after loan charge-offs and recoveries, to maintain the allowance for loan losses at an appropriate level which is adequate to absorb estimated losses inherent in the loan portfolio. Such estimated losses arise primarily from the loan portfolio but may also result from other sources, including commitments to extend credit and letters of credit. The level of the allowance is determined on a monthly basis using procedures which include: (1) categorizing commercial, commercial real estate and construction and land development loans into risk categories to estimate loss probabilities based primarily on the historical loss experience of those risk categories and current economic conditions; (2) analyzing significant commercial, commercial real estate and construction and land development credits and calculating specific reserves as necessary; (3) assessing various homogeneous consumer loan categories to estimate loss probabilities based primarily on historical loss experience; and (4) considering various other factors, such as changes in credit concentrations, loan mix, and economic conditions which may not be specifically quantified in the loan analysis process.
There was no provision for loan losses recorded for the first nine months of 2013 and 2012, respectively. Managements calculation of the Banks allowance for loan losses shows the Banks allowance as being adequate, and management believes it has properly identified and handled deteriorating relationships during the past year. While troubled loan relationships continue to exist, the amount of troubled loans in the portfolio has continued to decrease. Combined with the Banks volume of recoveries, this has reduced the need for additional loan loss provisions.
The calculation of the Banks allowance for loan losses at September 30, 2013 and at September 30, 2012 showed the Banks allowance as being adequate; therefore, no provisions were recorded during the third quarter of 2013 or for the same period in 2012.
The allowance for loan losses consists of an allocated portion and an unallocated, or general, portion. The allocated portion is maintained to cover estimated losses applicable to specific relationships in the loan portfolio. The unallocated portion is maintained to absorb losses which probably exist as of the evaluation date but are not identified by the more objective processes used for the allocated portion of the allowance due to risk of errors or imprecision. While the total allowance consists of an allocated portion and an unallocated portion, these terms are primarily used to describe a process. Both portions of the allowance are available to provide for inherent loss in the entire portfolio.
The allowance for loan losses is increased by provisions for loan losses charged to expense and is reduced by loans charged off net of recoveries on loans previously charged off. The provision is based on managements determination of the amount of the allowance necessary to provide for estimated loan losses based on its evaluation of the loan portfolio. Determining the appropriate level of the allowance and the amount of the provision involves uncertainties and matters of judgment and therefore cannot be determined with precision. At September 30, 2013 and at December 31, 2012, the allowance represented 1.84% and 2.19% of total loans, respectively.
F-125
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Stock Option Arrangement
In October, 2004, the shareholders of the Bank approved the MidSouth Banks 2004 Stock Option Arrangement (the Arrangement). The Arrangement provides for the granting of stock options, and authorizes the issuance of common stock upon the exercise of such options, for up to 380,000 shares of common stock to employees and organizers of the Bank and up to 143,080 shares of common stock for future use as decided by the Directors of the Bank. Under the Arrangement, stock option awards were granted in the form of incentive stock options or non-statutory stock options, and were generally exercisable for up to ten years following the date such option awards are granted. Exercise prices of incentive stock options must be equal to or greater than 100% of the fair market value of the common stock on the grant date and generally vest at the end of four years. Certain option awards provide for accelerated vesting if there is a change in control (as defined in the Arrangement).
During 2012, the Board of Directors of MidSouth Bank evaluated the Banks financial improvement since 2009, and to reward and incent the Banks personnel and directors for the progress made by the Bank during the recessionary period, the Board elected to modify the exercise price of the options that were outstanding at November 30, 2012 to $3.65 per share. This was done through the issuance of amendments to the original stock option agreements, and the value was based upon a valuation of the Banks stock that was conducted by an independent third party located outside the Banks local market. As of November 30, 2012, 334,800 stock options were repriced.
In addition to modifying the exercise price of the options, the outstanding options became non-qualifying stock options, and a new vesting schedule was established for the options. The new vesting schedule was established as 20% vesting each year on December 31, with the first vesting occurring on December 31, 2012 and the vesting period extending through December 31, 2016. The expiration date of the options was also modified to December 31, 2032.
As of September 30, 2013, 495,000 options had been granted of which 41,700 have been exercised and 127,000 have been forfeited. Options that are forfeited revert to the Arrangement and can be granted again in the future. As of September 30, 2013, 65,260 options were exercisable. The weighted average exercise prices for both outstanding and exercisable stock options as of September 30, 2013 were $3.65. The weighted average remaining contractual terms for both outstanding and exercisable stock options as of September 30, 2013 were 19.3 years. There was no intrinsic value of stock options exercised at September 30, 2013, since no options were exercised during the period. As of September 30, 2013, there were total unrecognized compensation costs of $40 related to non-vested share-based compensation arrangements granted under the Arrangement. Those costs are expected to be recognized over a remaining weighted average period of two years. Compensation expense related to stock options totaled $9 and $5 for the nine months ended September 30, 2013 and 2012, respectively. Compensation expense related to stock options totaled $3 and $2 for the three months ended September 30, 2013 and 2012, respectively.
Under the Stock Option Arrangement, stock option awards may be granted in the form of incentive stock options or non-statutory stock options, with a ten-year option to purchase. Exercise prices of incentive stock options must be equal to or greater than 100% of the fair market value of the common stock on the grant date and otherwise in compliance with the requirements of the Internal Revenue Code applicable to incentive stock options and the terms of the Plan.
Preferred Stock
On December 31, 2009, the Bank initiated an offering of shares of non-cumulative convertible Series 2009A Preferred Stock. The sales of this series of preferred stock resulted in additional capital of $4,983, net of stock issuance costs. The liquidation preference for the Series 2009A Preferred Stock is $5.00 per share, and this series of preferred stock is non-redeemable. Each share of Series 2009A Preferred Stock is convertible into two shares of the Banks common stock by the stockholder at any time, but if not converted voluntarily by the stockholder, each share of this preferred stock will automatically convert into two shares of the Banks common stock on March 31, 2015, subject to certain limitations. Additionally, anyone who purchased the Series 2009A Preferred Stock received one detachable warrant to purchase one share of the Banks common stock for every five shares of the Series 2009A Preferred Stock that they purchased. These detachable warrants and their related terms are discussed further below.
On March 22, 2011, the Bank initiated an offering of shares of non-cumulative convertible Series 2011-A Preferred Stock that ended on June 30, 2011. The sales of this series of preferred stock resulted in additional capital of $1,325, net of stock issuance costs. The liquidation preference for the Series 2011-A Preferred Stock is $5.00 per
F-126
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
share, and this series of preferred stock is non-redeemable. Each share of Series 2011-A Preferred Stock is convertible into two shares of the Banks common stock by the stockholder at any time, but if not converted voluntarily by the stockholder, each share of this preferred stock will automatically convert into two shares of the Banks common stock on May 31, 2016, subject to certain limitations. Additionally, anyone who purchased the Series 2011-A Preferred Stock received one detachable warrant to purchase one share of the Banks common stock for every five shares of the Series 2011-A Preferred Stock that they purchased. These detachable warrants and their related terms are discussed further below.
The fair value of the detachable warrants that were issued in tandem with the Series 2009A Preferred Stock was determined to be approximately $5 as of September 30, 2013, and the fair value of the detachable warrants that were issued in tandem with the Series 2011-A Preferred Stock was determined to be approximately $2 as of September 30, 2013.
The fair value of both series of the detachable warrants as of September 30, 2013 was estimated using the Black-Scholes warrant pricing model and the following assumptions:
Series 2009A
Warrants |
Series 2011-A
Warrants |
|||||||
Risk-free interest rate |
1.71 | % | 1.71 | % | ||||
Expected life of warrants |
1.50 years | 2.67 years | ||||||
Expected dividend yield |
0.00 | % | 0.00 | % | ||||
Expected volatility |
15 | % | 15 | % |
As of September 30, 2013, each Series 2009A detachable warrant had a fair value of $0.004 per share. The fair value of the Series 2009A Preferred Stock and the fair value of the detachable warrants were summed, and the carrying amounts for the Series 2009A Preferred Stock and the detachable warrants were calculated based on an allocation of the two fair value components. The aggregate fair value result for both the Series 2009A Preferred Stock and the related detachable warrants was calculated to be $5,088, with 0.1% of this aggregate total allocated to the detachable warrants and 99.9% allocated to the Series 2009A Preferred Stock.
As of September 30, 2013, each Series 2011-A detachable warrant had a fair value of $0.012 per share. The fair value of the Series 2011-A Preferred Stock and the fair value of the detachable warrants were summed, and the carrying amounts for the Series 2011-A Preferred Stock and the detachable warrants were calculated based on an allocation of the two fair value components. The aggregate fair value result for both the Series 2011-A Preferred Stock and the related detachable warrants was calculated to be $1,333, with 0.2% of this aggregate total allocated to the detachable warrants and 99.8% allocated to the Series 2011-A Preferred Stock.
Stock Warrants
Detachable Warrants Issued with Preferred Stock
As part of the original offering of Series 2009A Preferred Stock, for every five shares of Series 2009A Preferred Stock purchased, the stockholder received one detachable warrant which provides the stockholder the ability to purchase one share of common stock. The purchase price for the common stock shares from these warrants is equal to 75% of the fully converted book value of the Banks common stock as of the previous quarter-end date (unaudited). The exercise price cannot, however, exceed $10.00 per share or be less than $2.50 per share. The exercise price for these warrants as of September 30, 2013 was $3.29 per share based on a fully converted book value of $4.38 as of September 30, 2013. For each recipient, the warrants received are required to be exercised by March 31, 2016. At that time the warrants will expire. A total of 204,939 warrants were issued with the Series 2009A Preferred Stock, and through September 30, 2013, 10,688 of the Series 2009A warrants have been exercised. There were 194,251 Series 2009A warrants outstanding as of September 30, 2013.
Also, as part of the offering of Series 2011-A Preferred Stock, for every five shares of Series 2011-A Preferred Stock purchased, the stockholder received one detachable warrant which provides the stockholder the ability to purchase one share of common stock. The purchase price for the common stock shares from these
F-127
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
warrants is equal to 85% of the fully converted book value of the Banks common stock as of the previous quarter-end date (unaudited). The exercise price cannot, however, exceed $11.00 per share or be less than $2.75 per share. The purchase price for these warrants as of September 30, 2013 was $3.72 per share based on a fully converted book value of $4.38 as of September 30, 2013. For each recipient, the warrants received are required to be exercised by May 31, 2017. At that time the warrants will expire. A total of 48,469 warrants were issued with the Series 2011-A Preferred Stock, and through September 30, 2013, 4,928 of those warrants have been exercised. There were 43,541 Series 2011-A warrants outstanding as of September 30, 2013.
Earnings Per Share
The following is a summary of the components comprising basic and diluted earnings per common share of stock (EPS):
Three Months Ended | Nine Months Ended | |||||||||||||||
(In Thousands, except share and per share amounts) |
September 30, | September 30, | September 30, | September 30, | ||||||||||||
2013 | 2012 | 2013 | 2012 | |||||||||||||
Basic EPS Computation: |
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Numerator Earnings for the period |
$ | 514 | $ | 443 | $ | 1,482 | $ | 1,213 | ||||||||
Denominator Weighted average number of common shares outstanding |
3,871,893 | 3,854,919 | 3,864,387 | 3,852,648 | ||||||||||||
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Basic earnings per common share |
$ | 0.13 | $ | 0.11 | $ | 0.38 | $ | 0.31 | ||||||||
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Diluted EPS Computation: |
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Numerator Earnings for the period |
$ | 514 | $ | 443 | $ | 1,482 | $ | 1,213 | ||||||||
Denominator Weighted average number of common shares outstanding |
3,871,893 | 3,854,919 | 3,864,387 | 3,852,648 | ||||||||||||
Dilutive effect of preferred stock conversions |
2,519,814 | 2,530,156 | 2,525,231 | 2,530,156 | ||||||||||||
Dilutive effect of warrants |
57,524 | | 57,903 | | ||||||||||||
Dilutive effect of stock options |
48,750 | | 48,750 | | ||||||||||||
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Denominator Adjusted weighted average number of common shares outstanding |
6,497,981 | 6,385,075 | 6,496,271 | 6,382,804 | ||||||||||||
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Diluted earnings per common share |
$ | 0.08 | $ | 0.07 | $ | 0.23 | $ | 0.19 | ||||||||
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The effects of stock option exercises and warrant purchases in the diluted earnings per share calculation were considered to be zero for the three and nine months ended September 30, 2012, since the impact of the exercise of these derivative securities would be anti-dilutive due to the average exercise prices exceeding market values in the cases of both the stock options and the warrants.
Fair Value Measurements and Fair Value of Financial Instruments
The Bank measures fair value in accordance with ASC 820, Fair Value Measurements and Disclosures , which establishes a fair value hierarchy and requires an entity to maximize the use of observable inputs and minimize the use of unobservable inputs when measuring fair value. The standard describes three levels of inputs that may be used to measure fair value:
Level 1: Quoted prices (unadjusted) or identical assets or liabilities in active markets that the entity has the ability to access as of the measurement date.
Level 2: Significant other observable inputs other than Level 1 prices such as quoted prices for similar assets or liabilities; quoted prices in markets that are not active; or other inputs that are observable or can be corroborated by observable market data.
Level 3: Significant unobservable inputs that reflect a reporting entitys own assumptions about the assumptions that market participants would use in pricing an asset or liability.
F-128
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Assets and Liabilities Measured on a Recurring Basis
Assets and liabilities measured at fair value on a recurring basis are summarized below:
Fair Value Measurements at September 30, 2013 Using | ||||||||||||||||
(In Thousands) |
Carrying
Value at September 30, 2013 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Securities available-for-sale |
$ | 73,086 | 4,127 | 68,959 | | |||||||||||
Fair Value Measurements at December 31, 2012 Using | ||||||||||||||||
(In Thousands) |
Carrying
Value at December 31, 2012 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Securities available-for-sale |
$ | 69,925 | 2,260 | 67,665 | |
Available-for-sale securities are measured on a recurring basis and are obtained from an independent pricing service. The fair values are based on quoted market prices of comparable securities, broker quotes or comprehensive interest rate tables and pricing matrices.
The table below presents a reconciliation and income statement classification of gains and losses for all financial assets measured at fair value on a recurring basis using significant unobservable inputs (Level 3) for the nine months ended September 30, 2013 and the year ended December 31, 2012:
Fair Value Measurements of Securities Available-for-Sale Using Significant Unobservable Inputs (Level 3)
Carrying Value | ||||||||
(In Thousands) |
Nine Months
Ended September 30, 2013 |
Year Ended
December 31, 2012 |
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Opening Balance, January 1 |
$ | | $ | 2,221 | ||||
Total unrealized gains (losses) included in: |
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Net Income |
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Other comprehensive income |
| 49 | ||||||
Purchases, sales, issuances and settlements, net |
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Transfers in and (out) of level three |
| (2,270 | ) | |||||
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Ending Balance |
$ | | $ | | ||||
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F-129
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Financial Assets and Liabilities Measured on a Non-Recurring Basis
Fair Value Measurements at September 30, 2013 Using | ||||||||||||||||
(In Thousands) |
Carrying Value at
September 30, 2013 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Impaired loans, net |
$ | 5,236 | $ | | $ | | $ | 5,236 | ||||||||
Loans held for sale |
1,558 | | 1,558 | | ||||||||||||
Fair Value Measurements at December 31, 2012 Using | ||||||||||||||||
(In Thousands) |
Carrying Value at
December 31, 2012 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Impaired loans, net |
$ | 6,790 | $ | | $ | | $ | 6,790 | ||||||||
Loans held for sale |
2,841 | | 2,841 | |
Impaired loan balances in the table above represent those collateral-dependent loans where management has estimated the credit loss by comparing the loans carrying values against the expected realized fair values of the collateral securing those loans. Impaired loans, which are measured for impairment using the fair value of the collateral for collateral-dependent loans, had carrying amounts of $5,704 and $7,723 as of September 30, 2013 and December 31, 2012, respectively, with valuation allowances of $468 and $933 as of September 30, 2013 and December 31, 2012, respectively.
Loans held for sale, which are carried at the lower of cost or fair value, did not have an impairment charge for the first nine months of 2013.
Non-Financial Assets and Liabilities Measured on a Non-Recurring Basis
The following represent nonfinancial assets and liabilities measured at fair value on a non-recurring basis as of September 30, 2013 and December 31, 2012. The valuation methodology used to measure the fair value of foreclosed assets is described below.
Fair Value Measurements at September 30, 2013 Using | ||||||||||||||||
(In Thousands) |
Carrying Value at
September 30, 2013 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Foreclosed assets |
$ | 800 | $ | | $ | | $ | 800 |
F-130
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Fair Value Measurements at December 31, 2012 Using | ||||||||||||||||
(In Thousands) |
Carrying Value at
December 31, 2012 |
Quoted Prices in
Active Markets for Identical Assets (Level 1) |
Significant
Other Observable Inputs (Level 2) |
Significant
Unobservable Inputs (Level 3) |
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Assets: |
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Foreclosed assets |
$ | 800 | $ | | $ | | $ | 800 |
Foreclosed assets are valued at the time the loan is foreclosed upon, and the asset is transferred to foreclosed assets. The value is based primarily on third party appraisals, less costs to sell. The appraisals are generally discounted based on managements historical knowledge, changes in market conditions from the time of valuation, and/or managements expertise and knowledge of the customer and the customers business. Such discounts are typically significant and result in a Level 3 classification of the inputs for determining fair value. Foreclosed assets are reviewed and evaluated on at least an annual basis for additional impairment and adjusted accordingly, based on the same factors identified above. Foreclosed assets had a carrying amount of $1,200 with a valuation allowance of $400 at September 30, 2013 and at December 31, 2012.
Fair Value of Financial Instruments
Fair value estimates, methods, and assumptions are set forth below for the Banks financial instruments.
Cash and short-term investments
For those short-term instruments, the carrying amount is a reasonable estimate of fair value.
Certificates of Deposit at Other Financial Institutions
Fair values for certificates of deposit at other financial institutions are estimated using a discounted cash flow analysis that applies interest currently being offered on certificates to a schedule of aggregated contractual maturities on such instruments.
Restricted Equity Securities
The carrying amount for these securities is a reasonable estimate of their fair value.
Securities
The carrying amounts for short-term securities approximate fair value because they mature in 90 days or less and do not present unanticipated credit concerns. The fair value of longer-term securities and mortgage-backed securities, except certain state and municipal securities, is estimated based on bid prices published in financial newspapers or bid quotations received from securities dealers. The fair value of certain state and municipal securities is not readily available through market sources other than dealer quotations, so fair value estimates are based on quoted market prices of similar instruments, adjusted for differences between the quoted instruments and the instruments being valued.
Fair values should be calculated based on the value of one unit without regard to any premium or discount that may result from concentrations of ownership of a financial instrument, possible tax ramifications, or estimated transaction costs. Accordingly, these considerations have not been incorporated into the fair value estimates.
F-131
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Loans
Fair values are estimated for portfolios of loans with similar financial characteristics. Loans are segregated by type such as commercial, mortgage and other consumer. Each loan category is further segmented into fixed and adjustable rate interest terms.
The fair value of the various categories of loans is estimated by discounting the future cash flows using the current rates at which similar loans would be made to borrowers with similar credit ratings and for the same remaining average estimated maturities.
The estimated maturity for mortgages is modified from the contractual terms to give consideration to managements experience with prepayments. Management has made estimates of fair value discount rates that it believes to be reasonable. However, because there is no market for many of these financial instruments, management has no basis to determine whether the fair value presented below would be indicative of the value negotiated in an actual sale.
The value of the loan portfolio is also discounted in consideration of the credit quality of the loan portfolio as would be the case between willing buyers and sellers. Particular emphasis has been given to loans on the Banks internal watch list. Valuation of these loans is based upon borrower performance, collateral values (including external appraisals), and on comparable objective information and subjective internal assessments.
Loans Held for Sale
These instruments are carried in the consolidated balance sheets at the lower of cost or market value. The fair values of these instruments are based on subsequent liquidation values of the instruments which did not result in any significant gains or losses.
Deposit Liabilities
The fair value of demand deposits, savings accounts and certain money market deposits is the amount payable on demand at the reporting date. The fair value of fixed-maturity certificates of deposit is estimated using the rates currently offered for deposits of similar remaining maturities. The fair value estimates for deposits does not include the benefit that results from the low cost funding provided by the deposit liabilities compared to the cost of borrowing funds in the market.
Securities Sold Under Agreement to Repurchase
The carrying amounts approximate fair values as repurchase agreements are overnight instruments.
Commitments to Extend Credit, Standby Letters of Credit and Financial Guarantees Written
Loan commitments are made to customers generally for a period not to exceed one year and at the prevailing interest rates in effect at the time the loan is closed. Commitments to extend credit related to construction loans are made for a period not to exceed one year with interest rates at the current market rate at the date of closing. In addition, standby letters of credit are issued for periods extending from one to two years with rates to be determined at the date the letter of credit is funded. Fees are only charged for the construction loans and the standby letters of credit and the amounts unearned at June 30, 2013, are insignificant. Accordingly, these commitments have no carrying value and management estimates the commitments to have no significant fair value.
F-132
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
The carrying values and estimated fair values of the Banks remaining financial instruments at September 30, 2013 and December 31, 2012 are as follows:
(In Thousands) |
Carrying
amount |
Estimated
fair value |
Quoted market
prices in an active market (Level 1) |
Models with
significant observable market parameters (Level 2) |
Models with
Significant unobservable market Parameters (Level 3) |
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September 30, 2013 |
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Financial assets: |
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Certificates of deposit at other financial institutions |
$ | 1,732 | $ | 1,762 | $ | | $ | | $ | 1,762 | ||||||||||
Restricted equity securities |
1,540 | 1,540 | | | 1,540 | |||||||||||||||
Loans, net of allowance |
152,121 | 156,328 | | | 156,328 | |||||||||||||||
Financial liabilities: |
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Deposits |
231,444 | 231,358 | | | 231,358 | |||||||||||||||
Securities sold under agreement to repurchase |
626 | 626 | | | 626 | |||||||||||||||
Off balance sheet instruments: |
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Commitments to extend credit |
| | | | | |||||||||||||||
Standby letters of credit |
| | | | |
(In Thousands) |
Carrying
amount |
Estimated
fair value |
Quoted market
prices in an active market (Level 1) |
Models with
significant observable market parameters (Level 2) |
Models with
Significant unobservable market Parameters (Level 3) |
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December 31, 2012 |
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Financial assets: |
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Certificates of deposit at other financial institutions |
$ | 1,482 | $ | 1,536 | $ | | $ | | $ | 1,536 | ||||||||||
Restricted equity securities |
1,550 | 1,550 | | | 1,550 | |||||||||||||||
Loans, net of allowance |
137,790 | 137,762 | | | 137,762 | |||||||||||||||
Financial liabilities: |
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Deposits |
221,752 | 221,949 | | | 221,949 | |||||||||||||||
Securities sold under agreement to repurchase |
1,044 | 1,044 | | | 1,044 | |||||||||||||||
Off balance sheet instruments: |
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Commitments to extend credit |
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Standby letters of credit |
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F-133
MIDSOUTH BANK
Notes to Consolidated Financial Statements
September 30, 2013 and September 30, 2012
Limitations
Fair value estimates are made at a specific point in time, based on relevant market information and information about the financial instruments. These estimates do not reflect any premium or discount that could result from offering for sale at one time the Banks entire holdings of a particular financial instrument. Because no market exists for a significant portion of the Banks financial instruments, fair value estimates are based on judgments regarding future expected loss experience, current economic conditions, risk characteristics of various financial instruments, and other factors. These estimates are subjective in nature and involve uncertainties and matters of significant judgment and therefore cannot be determined with precision. Changes in assumptions could significantly affect the estimates.
Estimated fair values are consistent with an exit-price concept. The assumptions used are intended to approximate those that a market-participant would realize in a hypothetical orderly transaction.
Fair value estimates are based on estimating on-and-off-balance sheet financial instruments without attempting to estimate the value of anticipated future business and the value of assets and liabilities that are not considered financial instruments. Other significant assets and liabilities that are not considered financial assets or liabilities include deferred tax assets and liabilities and property, plant and equipment. In addition, the tax ramifications related to the realization of the unrealized gains and losses can have a significant effect on fair value estimates and have not been considered in the estimates.
Recent Accounting Pronouncements
In February 2013, the Financial Accounting Standards Board issued Accounting Standards Update 2013-02, Comprehensive Income (Topic 220): Reporting of Amounts Reclassified Out of Accumulated Other Comprehensive Income, which provides disclosure guidance on amounts reclassified out of accumulated other comprehensive income by component. This update did not have any impact on the Banks financial position or results of operations, nor did it have an impact on the Banks consolidated financial statements. All changes in other comprehensive income relate to unrealized gains and losses on available-for-sale securities.
F-134
AGREEMENT AND PLAN OF REORGANIZATION AND BANK MERGER
by and between
MIDSOUTH BANK
and
FRANKLIN FINANCIAL NETWORK, INC. and FRANKLIN SYNERGY BANK
AGREEMENT AND PLAN OF REORGANIZATION AND BANK MERGER
THIS AGREEMENT AND PLAN OF REORGANIZATION AND BANK MERGER the Agreement) is made and entered into the latest date of execution by the parties below, among MidSouth Bank, a Tennessee banking corporation (the Bank); Franklin Financial Network, Inc., a Tennessee corporation (Buyer BHC); and Franklin Synergy Bank, a Tennessee banking corporation (Buyer Bank).
WITNESSETH:
WHEREAS , the principal and business offices of the Bank are located at One East College Street, Murfreesboro, Tennessee 37130; and
WHEREAS , the principal offices of Buyer BHC and Buyer Bank are located at 722 Columbia Avenue, Franklin, Tennessee 37064; and
WHEREAS , as of September 30, 2013, the authorized capital stock of the Bank consists of 20,000,000 shares of Common Stock, $1.00 par value, of which 3,871,893 shares are issued and outstanding (Bank Common Stock) and 20,000,000 shares of Preferred Stock, no par value, of which 1,017,557 shares of Convertible Voting Preferred Stock, Series 2009A and 242,350 shares of Convertible Voting Preferred Stock, Series 2011-A are issued and outstanding (Bank Preferred Stock, and collectively with the Bank Common Stock, the Bank Stock); and there are 194,251 Series 2009A Warrants and 43,541 Series 2011-A Warrants; each warrant carries the right to purchase an additional one share of Bank Stock with an average exercise price of $3.29 for 2009A Warrants and $3.72 for 2011-A Warrants; all warrants are currently exercisable (the Warrants) and options to purchase an additional 326,300 shares of the Bank Stock with an average exercise price of $3.65 per share and which are, or are expected to become, vested on or before the Effective Time, as defined below (the Options); and
WHEREAS , as of September 30, 2013, the authorized capital stock of the Buyer BHC consists of 10,000,000 shares of Common Stock no par value, of which 4,669,123 shares are issued and outstanding (Buyer BHC Common Stock) (inclusive of 30,105 shares of restricted common stock of Buyer BHC that have been issued but are not vested as of the date of this Agreement) and 1,000,000 shares of Preferred Stock with terms to be designated by the directors of BHC, of which 10,000 shares of Senior Non-Cumulative Perpetual Preferred Stock, Series A, have been designated and are issued and outstanding; there are warrants to purchase an additional 32,125 shares of Buyer BHC Common Stock with an exercise price of $12.00 per share and which are currently exercisable; and there are 1,500,000 shares of Buyer BHC Common Stock reserved for the exercise of stock options, with outstanding options to purchase 946,644 shares of Buyer BHC Common Stock at a weighted average exercise price of $11.27 per share, restricted stock and other equity incentives under the Buyer BHCs Omnibus Equity Incentive Plan (the BHC Option Plan); and
WHEREAS , for Federal income tax purposes, it is intended that the Merger, as defined below, shall qualify as a reorganization under the provisions of Section 368(a) of the Internal Revenue Code of 1986, as amended; and
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WHEREAS , the respective Boards of Directors of the Bank, Buyer BHC, and Buyer Bank deem it advisable and in the best interest of the Bank, Buyer BHC, and Buyer Bank, and their respective shareholders that the Bank be merged with and into Buyer Bank (the Merger), and, by resolutions duly adopted, have approved and adopted this Agreement and directed that it be submitted to their respective shareholders, if required, for their approval.
NOW, THEREFORE , in consideration of the premises, mutual covenants, and agreements herein contained, and for the purpose of stating the method, terms, and conditions of the Merger provided for herein, the mode of carrying the same into effect, the manner and basis of converting and exchanging the shares of Bank Stock as hereinafter provided, and such other provisions relating to the Merger as the parties deem necessary or desirable, the parties hereto agree as follows:
1. MERGER.
(a) Subject to the satisfaction or waiver of all of the conditions to the obligations of each of the parties to this Agreement, at the Effective Time (as defined in the Plan of Merger attached to Appendix A (the Plan)) and pursuant to the Tennessee Business Corporation Act (TBCA) and Tennessee Banking Act, the Bank shall be merged with and into Buyer Bank, which latter corporation (the Surviving Bank) shall survive the Merger, pursuant to the Plan. (The term Surviving Bank shall have the same meaning as resulting bank set forth in Tenn. Code Ann. Section 45-2-1301 (7).) Upon consummation of the Merger, the separate corporate existence of the Bank shall terminate.
(b) The parties may by mutual agreement at any time change the method of effecting the combination of Buyer Bank and Bank, including without limitation the provisions of this Article 1, if and to the extent they deem such change to be desirable; provided, however, that no such change shall (i) alter or change the amount of the Purchase Price (as defined below) to be provided to holders of Bank Stock (as defined below) as provided for in this Agreement, (ii) adversely affect the tax treatment of holders of Bank Stock as a result of receiving the Purchase Price or (iii) materially impede or delay consummation of the transactions contemplated by this Agreement.
2. DESCRIPTION OF TRANSACTION.
(a) Satisfaction of Conditions to Closing . After the transactions contemplated hereby have been approved by the shareholders of Buyer BHC, Buyer Bank, and the Bank, if required, and each other condition to the obligations of the parties hereto has been satisfied or waived by the party or parties entitled to the benefits thereof, other than those conditions which are to be satisfied by delivery of documents by any party to any other party, a closing (the Closing) will be held on the date (the Closing Date) and at the time of day and place referred to in Section 12(a). At the Closing, the parties will use their respective best efforts to deliver the certificates, letters, and opinions which constitute conditions to the Merger and each party will provide the other parties with such proof or indication of satisfaction of the conditions of such parties to consummate the Merger as such other parties may reasonably require. If all conditions to the obligations of each of the parties have been satisfied or waived by the party entitled to the benefits thereof, the parties shall, at the Closing, duly execute Articles of Merger substantially in the form attached as Appendix A for filing with
2
the Tennessee Department of Financial Institutions and the Tennessee Secretary of State, as may be appropriate, and promptly thereafter, the parties shall take all steps necessary or desirable to consummate the Merger in accordance with all applicable laws, rules, and regulations and the Plan. The parties shall thereupon take such other and further actions as Buyer BHC shall reasonably direct to the extent required by law or this Agreement to consummate the transactions contemplated herein.
(b) Effective Time of the Merger . Upon the satisfaction of all conditions to closing, the Merger shall become effective on the date and at the time of filing of the Articles of Merger with the Tennessee Secretary of State or at such later date and/or time as may be agreed upon by the parties and set forth in the Plan (the Effective Time).
(c) Continuation of Business . Immediately following the Effective Time, the business of the Surviving Bank shall be governed and operated as follows:
(i) The Charter and Bylaws of Buyer Bank in effect at the Effective Time shall be the Charter and Bylaws of the Surviving Bank to remain unchanged until amended as provided by law.
(ii) Except for adding three (3) current members of the Board of Directors of the Bank as directors of Buyer BHC and Buyer Bank, the directors and officers of Buyer BHC and Buyer Bank immediately prior to the Merger shall be the directors and officers of the Buyer BHC and Surviving Bank respectively immediately after the Merger and shall serve until their respective successors are elected and qualified or until their earlier resignation or removal from office.
(d) Shares of Buyer BHC Common Stock and Buyer Bank . Subsequent to the Effective Time of the Merger, each share of Buyer BHC Common Stock and common stock of Buyer Bank then issued and outstanding shall remain as the issued and outstanding Buyer BHC Common Stock and common stock of Buyer Bank.
(e) Shares, Warrants and Options of the Bank . Upon the terms and conditions described in the Plan, determined as of September 30, 2013, but subject to the prior exercise of Bank Options and Bank Warrants, and also subject to the conversion of Bank Preferred Stock before the Effective Time, the shares of Bank Common Stock, Bank Preferred Stock, Bank Warrants and Bank Options shall be converted into shares, options to purchase, or warrants exercisable for shares of Buyer BHC Common Stock, as applicable, (also referred to as the Purchase Price or the Merger Consideration) based upon an exchange ratio of one share of Bank Common Stock (or the equivalent) equating to 0.425926 shares of Buyer BHC Common Stock (the Exchange Ratio) follows:
(i) Each share of Bank Common Stock shall be converted into the right to receive 0.425926 shares of Buyer BHC Common Stock. All shares of Bank Common Stock then will be cancelled.
3
(ii) Each share of Bank Preferred Stock shall be converted into the right to receive 0.851852 shares of Buyer BHC Common Stock for each share of Bank Preferred Stock. All shares of Bank Preferred Stock then will be cancelled.
(iii) Each of the Banks Warrants will receive Merger Consideration in the form of that number of shares of Buyer BHC Common Stock equal to (I) $5.75 less strike price of the Warrant at the Effective Time (II) divided by $13.50.
(iv) Each Bank Option to purchase a share of Bank Common Stock shall be converted into an option to purchase a share of Buyer BHC Common Stock multiplied by the Exchange Ratio; the exercise price will become the exercise price of such Option divided by the Exchange Ratio. All of the Banks Stock Options will then be cancelled.
(v) In lieu of the issuance of any fractional shares of Buyer BHC Common Stock, Buyer BHC shall pay to each former shareholder of Bank who otherwise would be entitled to receive such fractional share an amount in cash determined by multiplying (i) $13.50 by (ii) the fraction of a share (rounded to the nearest thousandth when expressed in decimal form) of Buyer BHC Common Stock to which such holder would otherwise be entitled to receive pursuant to this Agreement.
(f) Stock Transfer Books . At the Effective Time of the Merger, the stock transfer books of the Bank shall be closed and no transfer of the Bank Stock shall be made thereafter.
(g) Effects of the Merger . As of the Effective Time of the Merger, and the Bank shall be merged with and into Buyer Bank which, as the Surviving Bank, shall thereupon and thereafter possess all of the assets, rights, privileges, appointments, powers, licenses, permits and franchises of the two merged companies, whether of a public or a private nature, and shall be subject to all of the liabilities, restrictions, disabilities and duties of both the Bank and Buyer Bank, and the separate existence of the Bank shall cease.
(h) Transfer of Assets . At the Effective Time, all rights, assets, licenses, permits, franchises and interests of the Bank in and to every type of property, whether real, personal, or mixed, whether tangible or intangible, and to choses in action shall be deemed to be vested in Buyer Bank as the Surviving Bank respectively by virtue of the Merger and without any deed or other instrument or act of transfer whatsoever.
(i) Assumption of Liabilities . At the Effective Time, the Surviving Bank shall become and be liable for all debts, liabilities, obligations and contracts of the Bank, whether the same shall be matured or unmatured; whether accrued, absolute, contingent or otherwise; and whether or not reflected or reserved against in the balance sheets, other financial statements, books of account or records of the Bank.
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(j) Dissenting Shareholders Rights . Any holder of Bank Stock who shall comply strictly with the provisions of T.C.A. §48-23-101 et seq. of the Tennessee Business Corporation Act shall be entitled to dissent from the Merger and to seek those appraisal remedies afforded by the Tennessee Business Corporation Act. Such a shareholder is referred to herein as a Dissenting Shareholder. However, Buyer BHC and Buyer Bank shall not be obligated to consummate the Merger if shareholders owning more than 7.5% of the shares of Bank Stock issued and outstanding immediately prior to the Effective Time shall have perfected their dissenters rights in accordance with the Tennessee Business Corporation Act and the perfected status of said dissenters rights shall have continued to the time of Closing.
(k) Payment of Dividends after the Effective Time . Any dividend declared by the BHC Buyer for payment at or after the Effective Time shall be paid as well with respect to those whole shares of BHC Buyer Common Stock being issued to holders of Bank Stock and shall be deposited and paid in accordance with Section 11(h) and Section 11(i).
(l) Expenses . Each party to the Merger shall pay its own expenses in connection with the transactions contemplated by this Agreement. The Bank will not incur expenses related to the Merger (limited to investment banking, fairness opinion, legal, accounting and related professional services fees) (the Transaction Expenses) in excess of $750,000; provided, however, if the Form S-4 (as defined in Section 11(a)) becomes subject to review by the United States Securities and Exchange Commission (SEC), the Bank shall not be subject to this limit on the Banks Transaction Expenses.
(m) Closing of Transfer Books . The Purchase Price issued upon the surrender of the Bank Certificates shall be deemed to have been issued (and paid) in full satisfaction of all rights pertaining to the Bank Stock, Bank Warrants and Bank Options theretofore represented by such Bank Certificates, Bank Warrants and Bank Options and there shall be no further registration of transfers on the stock transfer books of Buyer BHC of the Bank Stock, Bank Warrants and Bank Options.
3. REPRESENTATIONS AND WARRANTIES OF THE BANK.
Except as disclosed in the disclosure schedule (the Schedule of Exceptions) delivered by the Bank to Buyer BHC and Buyer Bank prior to the execution of this Agreement (which schedule sets forth, among other things, items the disclosure of which is necessary or appropriate either in response to an express disclosure requirement contained in a provision hereof or as an exception to one or more representations or warranties contained in this Article 3 or to one or more of the covenants contained in Article 5 or 6, provided, however, that, notwithstanding anything in this Agreement to the contrary, (i) no such item is required to be set forth in such schedule as an exception to a representation or warranty if its absence would not result in the related representation or warranty being deemed materially misleading, untrue or incorrect, and (ii) the mere inclusion of an item in such schedule as an exception to a representation or warranty shall not be deemed an admission that such item represents a material exception or material fact, event or circumstance or that such item has had or would be reasonably likely to have a material adverse effect on the Bank), as an inducement to Buyer BHC and Buyer Bank to enter into this Agreement, the Bank represents and warrants to Buyer BHC and Buyer Bank that:
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(a) Corporate Organization, Standing, and Authority of the Bank . The Bank is a Tennessee banking corporation, duly organized and validly existing under the laws of the State of Tennessee, and has all corporate powers and possess all licenses and authorizations necessary to conduct its business as presently conducted (excepting any licenses and authorizations the absence of which would not have a material adverse effect upon the financial condition or operations of the Bank). The Bank is qualified to do business in the State of Tennessee and in all other states where the nature of its operations requires it to be so qualified. The Charter and Bylaws of the Bank will not be amended hereafter, and are complete and correct as of the date hereof. The Bank has the corporate power and authority to execute and deliver this Agreement and has the corporate power and authority to perform its obligations specified and undertaken in this Agreement. The Board of Directors of the Bank, at a lawfully convened meeting, has authorized the execution and delivery of this Agreement and Plan of Reorganization and Bank Merger by the Bank and will, subject to its fiduciary duties, recommend approval of same by the Banks shareholders.
(b) Binding Effect of Agreement . This Agreement constitutes the valid and binding obligation of the Bank and is enforceable in accordance with its terms (except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect which affect creditors rights generally, and by legal and equitable limitations on the availability of injunctive relief, specific performance and other equitable remedies which are available only in the discretion of a court).
(c) No Breach. Neither the execution and delivery of this Agreement, assuming shareholder and regulatory approval, nor the consummation of the transactions contemplated hereby will: (i) violate any provision of the Charter or Bylaws of the Bank or of any subsidiary of the Bank; (ii) violate any statute, rule, or regulation to which the Bank is subject, or any judicial or administrative decree, writ, judgment, or order in which the Bank is named or to which it is a party, (iii) violate or cause a default or termination of any rights or any obligations under any contracts or agreements; or (iv) require the consent or approval of any third party other than regulatory authorities and agencies and the shareholders.
(d) Capitalization of the Bank . The authorized capital stock and rights to acquire such capital stock of the Bank consist of the Bank Common Stock, Bank Preferred Stock, Bank Warrants and Bank Options as defined in the preamble to this Agreement. All of the outstanding Bank Stock is validly issued, fully paid, and nonassessable and has not been issued in violation of any preemptive rights of any shareholder. Except as disclosed in Section 3(d) of the Schedule of Exceptions, the Bank owns all of the outstanding equity securities of each of its subsidiaries and interests free and clear of any liens, charges, or encumbrances of any nature whatsoever. Other than the Bank Preferred Stock, Bank Warrants and Bank Options, a list of which is included in Section 3(d) of the Schedule of Exceptions, as of the date hereof, there are no outstanding securities or other obligations which are exercisable for or convertible into Bank Stock or into any other equity security of the Bank, or any of its subsidiaries, and there are no outstanding options, warrants, rights, calls or other commitments of any nature which would entitle the holder, upon exercise thereof, to be issued the Bank Stock or any other equity security of the Bank or any of its subsidiaries.
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(e) Financial Statements . The Bank has delivered and, to the extent reference is made to financial statements not yet available or capable of development, will deliver to Buyer BHC and Buyer Bank true and complete copies of: (i) its audited consolidated annual financial statements and related notes thereto, for the years ended December 31, 2012, 2011, and 2010; (ii) its unaudited consolidated financial statements and related notes thereto, for the period ended September 30, 2013; and (iii) its unaudited consolidated financial statements for each of the calendar quarters in 2013 as well as for all quarters ending thereafter prior to the Effective Time. Such financial statements and the notes thereto present fairly, or will present fairly when issued, in all material respects, the consolidated financial position of the Bank at the respective dates thereof, and its consolidated results of operations and consolidated changes in financial position or cash flow, for the periods indicated, in each such case in conformity with accounting principles generally accepted in the United States of America, consistently applied subject in the case of unaudited statements to normal year-end adjustments and full footnote disclosure.
(f) Absence of Changes . Except as described in Section 3(f) of the Schedule of Exceptions or the notes to the financial statements of the Bank described in Section 3(e), since December 31, 2012: (i) the Bank and all of its subsidiaries have continued actively in the conduct of their respective businesses in the ordinary course; (ii) there has been no material adverse change in the consolidated financial condition of the Bank or any of its subsidiaries; (iii) there has been no transfer, sale, pledge or mortgage of any properties or assets of the Bank or any of its subsidiaries except in the ordinary course of business or except as previously authorized in writing by Buyer BHC and Buyer Bank; and (iv) neither the Bank nor any of its subsidiaries has incurred, assumed or guaranteed any borrowing or issued any letters of credit, except in each case in the ordinary course of business.
(g) Regulatory Filings . Except as described in Section 3(g) of the Schedule of Exceptions, as of the date of this Agreement, (i) the Bank has filed and will continue to file all required reports with applicable financial institution regulatory agencies, (ii) the Bank has not received oral or written notification from any regulatory agency that any such required filings were deficient in any material respect as to form or content, and the Bank has no knowledge of the existence of any fact or circumstance which might be expected to cause any regulatory agency to so regard such filings, and (iii) the Bank will promptly notify Buyer BHC and Buyer Bank of any oral or written notification from any regulatory agency that any required filings are deficient in any material respect as to form or content.
(h) Regulatory Compliance . Except as described in Section 3(h) to the Schedule of Exceptions, to the best of the knowledge and belief of the Bank since December 31, 2012, the Bank has been in material compliance with law and the regulations of all appropriate regulatory agencies and no reports, letters, orders or other communications have been received by the Bank from the Federal Reserve Board, the Federal Deposit Insurance Corporation, the Tennessee Department of Financial Institutions or any other federal or state financial institution regulatory authority, or the designated representatives of
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any of them, which has questioned or criticized in any material respect compliance with such laws or regulations; and the Bank will not knowingly take actions which will cause the Bank not to be in compliance with the laws and regulations of any appropriate regulatory agency. The Bank will promptly notify Buyer BHC and Buyer Bank of any report, letter, order or other communication from any appropriate regulatory agency which questions or criticizes in any material respect compliance with such laws or regulations.
(i) Sole Agreement to Merge or Sell . The Bank, has not been, is not, will not become, or will not be allowed to become, a party to any merger or business combination agreement, letter of intent, agreement of sale, or other agreement obligating the Bank or any of its subsidiaries to sell or authorize the sale or transfer of the Bank Stock, or any of the Banks subsidiaries, or to allow the Bank or any of its subsidiaries to merge or consolidate with, or to be acquired in any other manner by, any entity or person other than Buyer BHC and Buyer Bank, except as described in Section 6(k).
(j) Litigation and Claims. Except as specifically described in its financial statements or related notes described in Section 3(e) delivered to Buyer BHC and Buyer Bank or in Section 3(j) of the Schedule of Exceptions: (i) there is no material litigation, proceeding, or governmental investigation pending or, to the knowledge of the Bank threatened against, or relating to, the Bank or any of the Banks subsidiaries, or to their material properties or businesses, or to the transactions contemplated by this Agreement, which would have a material impact on, or act to materially inhibit, the transactions contemplated by this Agreement; (ii) there is no reasonable basis for any such material litigation, proceeding or governmental investigation (including, without limitation, violations of federal or state banking, antitrust, environmental or securities laws, RICO laws or probate laws); and (iii) neither the Bank nor any Bank subsidiary or corporate affiliate is a party to, or subject to the provisions of any judicial decree, judgment or order of any governmental agency the performance or enforcement of which would materially adversely affect its business or financial condition or the ability of the Bank to consummate the Merger.
(k) Tax Returns . Except for liabilities with respect to taxes, interest, and penalties thereon, to which reference is made in Section 3(k) of Schedule of Exceptions or in the Banks consolidated financial statements and the related notes thereto, described in Section 3(e), the provision for taxes therein is sufficient for the payment of all accrued and unpaid federal, state, county and local taxes of the Bank and its subsidiaries (including any penalties or interest payable in respect of such taxes), whether or not disputed, for the period ended December 31, 2012, and for all taxable years prior thereto, and the Bank has, or will have prior to the Effective Time, fully reserved for all taxes on gains and income of the Bank or its subsidiaries recognized from the sale of securities and assets occurring after December 31, 2012, and prior to the Effective Time of the Merger. The Banks federal income tax returns, its Tennessee franchise and excise tax returns, and all other tax returns required to be filed by the Bank or any Bank subsidiary have been duly filed for all years open for assessment to and including the year ended December 31, 2012, income or loss has been properly reflected therein in all material respects, and all material taxes that have become due and payable have been paid or are reflected as a liability on said financial statements.
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(l) Brokers. Except as specified in Section 3(l) of the Schedule of Exceptions, all negotiations relative to this Agreement and the transactions contemplated hereby have been carried on by the officers and directors of the Bank without the intervention of any broker or other person representing the Bank in such manner as to give rise to any valid claim against Buyer BHC and Buyer Bank for a finders fee, brokerage commission, or other similar payment.
(m) Stock Records . The stock transfer books and stock ledgers of the Bank are in good order, complete, accurate and up to date, and with all necessary signatures on the assignments of certificates representing shares previously transferred, and set forth all stock and securities issued, transferred and surrendered. Except as described in Section 3(m) of the Schedule of Exceptions, no duplicate certificate has been issued at any time, no transfer has been made without surrender of the proper certificate, duly endorsed, and all certificates so surrendered have been duly canceled.
(n) Contracts . Except as specified in Section 3(n) of the Schedule of Exceptions (and without limiting the foregoing), the Bank is not a party to any oral or written:
(i) License, franchise, agency, advertising, or brokerage agreement;
(ii) Agreement with any labor organization or other collective bargaining unit;
(iii) Agreement for the future purchase of materials, supplies, services, merchandise or equipment involving payments of more than $25,000 over its remaining term (including, without limitation, periods covered by any option to renew by either party);
(iv) Agreement for the purchase, sale, or lease of any real estate;
(v) Agreement for the sale of any of its other assets or the grant of any preferential rights to purchase any of its assets or rights, other than in the ordinary course of business;
(vi) Agreement which contains any provisions requiring the Bank to indemnify any other party thereto, other than as provided in the Banks Charter and/or Bylaws;
(vii) Joint venture agreement or other agreement involving the sharing of profits;
(viii) Agreement which restricts the Banks ability to do business in any particular geographic region, in any particular industry, or with any particular customer;
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(ix) Agreement providing the Bank the right to use the patents, trademarks, copyrights, know how or the like of others or provide others the right to use such rights of the Bank;
(x) Any employment or consulting contract which is not by its terms terminable at will without penalty;
(xi) Any contract or arrangement for bonuses or incentive compensation, deferred compensation, supplemental retirement payments, or the like;
(xii) Any material plan, contract or arrangement providing for insurance for any officer or employee or member of his family (other than conventional life, health, accident or similar plans available to the Banks employees generally).
(xiii) Any other material leases, investments, contracts, and other agreements to which the Bank or any of its subsidiaries are a direct or indirect party and which cannot be terminated upon less than 30 days notice.
Each such agreement listed in Section 3(n) of the Schedule of Exceptions is a legal, valid and binding obligation of, and is legally enforceable against, the respective Parties thereto, and there has not occurred an event which (whether with or without notice, lapse of time or the happening or occurrence of any other event) would constitute a default thereunder.
(o) Employee Plans.
(i) Section 3(o)(1) of the Schedule of Exceptions sets forth a true and complete list of all employment contracts, all pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, retainer, consulting, bonus, group insurance, incentive, welfare or any other contracts, plans or arrangements providing for employee compensation or benefits (the Employee Plans), and all trust agreements related thereto, to which the Bank or any subsidiary is a party or to which it contributes or by which it is bound. The only Employee Plans which would, individually or collectively, constitute an employee pension benefit plan as defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended, (ERISA) are so identified in Section 3(o)(1) of the Schedule of Exceptions and are hereinafter referred to as the Pension Plans. No Employee Plan constitutes a multiemployer plan as defined in Section 413(f) of ERISA.
(ii) Each Employee Plan which is intended to be qualified under Section 401(a) of the Internal Revenue Code of 1986, as amended, (the Code) is so qualified and each trust forming a part thereof is exempt from tax pursuant to Section 501(a) of the Code. Requests for determination letters relating to amendments required to cause such Employee Plans to be in compliance with the federal tax law were timely filed and have been received or are currently pending.
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(iii) Each Employee Plan has been maintained in substantial compliance with the requirements prescribed by all statutes, orders, rules and regulations including, but not limited to, ERISA and the Code, which are applicable to such Employee Plans. No accumulated funding deficiency within the meaning of ERISA has been incurred with respect to any pension plan, whether or not waived. No reportable event [as described in Section 4043(b) of ERISA] has occurred with respect to any Employee Plan. No Employee Plan or any trust created thereunder, nor any trustee or administrator thereof, has engaged in a prohibited transaction, as such term is defined in Section 4975 of the Code, which could subject such Employee Plans or any of them, any such trust or any such trustee or administrator thereof, or any party dealing with such employee benefit plans or any such trust, trustee or administrator to any material tax liability or penalty on prohibited transactions imposed by such Section 4975. As of December 31, 2012, the fair market value of the assets of any Pension Plan which is subject to Title IV of ERISA (excluding for these purposes any accrued but unpaid contributions) exceeded the present value of all benefits accrued under any such Employee Plan, determined on a termination basis using the assumptions established by the Pension Benefit Guaranty Corporation as in effect on such date. The Bank has not incurred any liability under Title IV of ERISA arising in connection with the termination of, or complete or partial withdrawal from, any Employee Plan covered or previously covered by Title IV of ERISA.
(iv) Except as set forth in Section 3(o)(4) of the Schedule of Exceptions, there has been no amendment to, written interpretation or announcement (whether or not written) relating to, or change in employee participation or coverage under any Employee Plan which would increase materially the expense of maintaining such Employee Plan above the level of expense incurred with respect thereto for the twelve-month period ended December 31, 2012.
(p) Franchises, Patents, Trademarks, and Other Rights . The Bank has all licenses and all other material franchises, permits, licenses, patents, trademarks, and other authority as are necessary to enable it to conduct its businesses as now being conducted and as proposed to be conducted, and they are not in default under any of such franchises, permits, licenses or other authority.
(q) Contracts of the Bank in Full Force . All contracts to which the Bank or any subsidiary is a party and which are in the aggregate material to the operations or business of any of them, are in full force and effect; are not subject to defenses arising from improper performance thereof; and neither the Bank nor any other subsidiary is in default thereunder.
(r) Environmental Matters . Except as set forth in Section 3(r) of the Schedule of Exceptions:
(i) neither the Bank nor any affiliate of the Bank is using or has used any real property owned or leased by or, to the best knowledge of the Bank, pledged to the Bank as collateral on any loan (the Real Property) nor is such Real Property used for the handling, treatment, storage or disposal of any Hazardous Substance (as hereinafter defined), and the Real Property is free from all contamination of any Hazardous Substance;
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(ii) no release, discharge, spillage or disposal of any Hazardous Substance and no soil or water contamination by any Hazardous Substance has occurred or is occurring in or on the Real Property;
(iii) the Bank has complied with all known reporting requirements under any applicable federal, state or local environmental laws and permits, and so far as the Bank knows, there are no existing violations by the Bank, and to the best knowledge of the Bank, there are no existing violations on property pledged as collateral to the Bank of any such environmental law or permits;
(iv) there are no claims, actions, suits, proceedings or investigations related to the presence, release, discharge, spillage or disposal of any Hazardous Substance or contamination of soil or water by any Hazardous Substance pending or threatened with respect to the Real Property or otherwise against the Bank and to the best knowledge of the Bank, against the owner of any property pledged as collateral to the Bank in any court or before any state, federal or other governmental agency or private arbitration tribunal, and there is no basis for any such claim, action, suit, proceeding or investigation;
(v) there are no underground storage tanks on the Real Property.
For the purpose of this Agreement, Hazardous Substance shall mean any hazardous or toxic substance or wastes as those terms are defined by any applicable federal or state law or regulation including, without limitation, the Comprehensive Environmental Recovery Compensation and Liability Act, 42 U.S.C. 9601 et seq., and the Resource Conservation and Recovery Act, 42 U.S.C. 9601 et seq., and petroleum, petroleum products, and oil.
(s) Certain Interests . Except in arms length transactions pursuant to standard commercial terms and conditions or as set forth in Section 3(s) of the Schedule of Exceptions, no officer or director of the Bank has any material interest in any property, real or personal, tangible or intangible, used in or pertaining to the business of the Bank. Except for the normal rights of a shareholder of the Bank, no such person is indebted to the Bank except for normal business advances; the Bank is not indebted to any such person except for amounts due under normal salary or reimbursement of ordinary business expenses and/or with respect to ordinary banking business (such as deposits).
(t) Personal Property . Except as disclosed on Section 3(t) of the Schedule of Exceptions, the Bank has good, valid, and marketable title to all equipment, machinery, and personal property used in its business. Such personal property is in good operating condition and repair and is suitable and adequate for the uses for which it is intended or is being used.
(u) Real Property. Section 3(u) of the Schedule of Exceptions lists and sets forth all real property in which the Bank possesses an ownership interest (other than as a creditor on collateral pledged to secure a loan made by the Bank) and lists and describes all real property leased by the Bank from others, and sets forth the owners of such properties. Except as disclosed on such Schedules:
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(i) Owned Property. The Bank has title in fee simple in each property listed in Section 3(u) of the Schedule of Exceptions free and clear of any defect or encumbrance, except (i) liens imposed by law and incurred in the ordinary course of business which in the aggregate do not exceed and will not exceed $10,000; and (ii) minor easements, defects and exceptions none of which individually, or in the aggregate, materially interferes with the use of such properties for the purposes for which they are held.
(ii) Leased Property. The Bank has valid and binding leases in each property listed and (a) the Bank is current with respect to all payments due under such leases; (b) the Bank has complied in all material respect with its obligations under such leases; and (c) there are no defaults under any such leases that remain uncured and no condition exists which, with the lapse of time or giving of notice, or both, would give rise to a default under any such leases.
(iii) Status of Real Property. The Bank is entitled to use all of the real property listed in Section 3(u) of the Schedule of Exceptions for the purposes for which it is now being used by the Bank without violation of any building code, zoning, or other ordinance. The buildings, structures, fixtures and improvements on each parcel of such real property lie entirely within the boundaries of such parcel of such real property as specified in the legal description set forth in such lists, and no structures of any kind encroach on such real property. The Bank has not received any notice (oral or written) from any insurance carrier in relation to such real property which could have an adverse effect on the insurance coverage or premiums relating to such real property or improvements thereon.
(iv) Condemnation. No portion of the real property listed in Section 3(u) of the Schedule of Exceptions, or any building, structure, fixture, or improvement thereon, is the subject of, or affected by, any condemnation, taking, eminent domain or inverse condemnation proceeding currently instituted or pending, and the Bank has no knowledge that any of the foregoing are, or will be, the subject of, or affected by, any such proceeding.
(v) Access to Utilities. The Bank has not experienced any restriction in access to and from public roads and to all utilities, including water, sewer, gas, electric, telephone, drainage and other utilities used by the Bank in the operation of the business as presently conducted and there is no pending or, to the best of the Banks knowledge, threatened governmental action which would prohibit or interfere with such access, and, to the best of the Banks knowledge, no fact or condition exists which, with the mere running of time, the giving of notice, or both, would result in the termination, reduction or impairment of the furnishing of service to the real property of water, sewer, gas, electric, telephone, drainage, and other such utility services.
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(v) Loan Portfolio .
(i) Except for matters disclosed in a classified loan list provided to Buyer BHC and Buyer Bank, neither the Bank, nor its subsidiaries are a party to any written or oral (i) loan agreement, note, or borrowing arrangement (including, without limitation, leases, credit enhancements, commitments, guarantees, and interest-bearing assets) (collectively, Loans), under the terms of which the obligor was, as of September 30, 2013, over 90 days delinquent in payment of principal or interest or in default of any other provision, or (ii) as of September 30, 2013, Loans with any director, executive officer, or five percent (5%) or greater shareholder of the Bank, or its subsidiaries, or any person, corporation or enterprise controlling, controlled by, or under common control with any of the foregoing. Section 3(v) of the Schedule of Exceptions sets forth (i) all of the Loans that, as of September 30, 2013, were classified by any bank examiner (whether regulatory or internal) as Other Loans Specially Mentioned, Special Mention, Substandard, Doubtful, Loss, Classified, Criticized, Credit Risk Assets, Impaired within the meaning of ASC 310, Concerned Loans, Watch List or words of similar import, together with the principal amount of and accrued and unpaid interest on each such Loan and the identity of the borrower thereunder, (ii) by category of Loan (i.e., commercial, consumer, etc.), all of the other Loans that, as of September 30, 2013, were (or should properly have been) classified as such, together with the aggregate principal amount of and accrued and unpaid interest on such Loans by category and (iii) each asset of the Bank, or its subsidiaries that, as of September 30, 2013, was (or should properly have been) classified as Other Real Estate Owned and the book value thereof.
(ii) Each Loan (i) is evidenced by notes, agreements or other evidences of indebtedness which are true, genuine and what they purport to be, (ii) to the extent secured, has been secured by valid liens and security interests which have been perfected and (iii) to the knowledge of the Bank is the legal, valid and binding obligation of the obligor named therein, enforceable in accordance with its terms, subject to bankruptcy, insolvency, fraudulent conveyance and other laws of general applicability relating to or affecting creditors rights and to general equity principles.
(w) No Violations of Related Party Laws . The Bank is not in violation of any Related Party Laws. As used in this Agreement, the term Related Party Laws means Section 23A and 23B of the Federal Reserve Act, and Regulation O and Regulation W as promulgated by the Federal Reserve Board, the National Banking Act, the Tennessee Banking Act, or any other comparable law, rule or regulation.
(x) Interest Rate Risk Management Instruments . Except as would not be reasonably likely to have, either individually or in the aggregate, a material adverse effect on the Bank, (a) all interest rate swaps, caps, floors and option agreements and other interest rate risk management arrangements, whether entered into for the account of the Bank, or for the account of a customer of the Bank, were entered into in the ordinary course of business and in accordance with prudent banking practice and applicable rules, regulations and
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policies of any regulatory authority and with counterparties believed to be financially responsible at the time, and are legal, valid and binding obligations of the Bank enforceable in accordance with their terms (except as may be limited by bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally and the availability of equitable remedies), and are in full force and effect; (b) the Bank has duly performed in all material respects all of its material obligations thereunder to the extent that such obligations to perform have accrued; and (c) there are no material breaches, violations or defaults or allegations or assertions of such by any party thereunder.
(y) Insurance . The Bank has in effect insurance coverage with reputable insurers or is self-insured, which in respect of amounts, premiums, types and risks insured, constitutes reasonably adequate coverage against all risks customarily insured against by banks and their subsidiaries comparable in size and operations to the Bank and its subsidiaries.
(z) Reorganization . As of the date of this Agreement, the Bank is not aware of any fact or circumstance that would reasonably be expected to prevent the Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code.
(aa) Expenses . The Bank will properly accrue all expenses prior to the Closing Date in accordance with accounting principles generally accepted in the United States.
(bb) Effective Dates of Warranties, Representations, and Covenants . Each warranty, representation, and covenant of the Bank set forth in this Agreement shall be deemed to be made on the date hereof and at the Effective Time. All of the Schedules of Exceptions hereto will be updated as necessary to make them true and correct, in all material respects as of the Effective Time.
(cc) Undisclosed Liabilities. Except for those liabilities that are fully reflected or reserved against on the consolidated balance sheet of Bank included in the Banks reports of condition and income and for liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2013, Bank has not incurred any liability of any nature whatsoever (whether absolute, accrued, contingent or otherwise and whether due or to become due) that, either individually or in the aggregate, has had or could be expected to have, a Material Adverse Effect (as that term is defined in Section 12(m)) on Bank.
(dd) State Takeover Laws. The Board of Directors has approved the transactions contemplated by this Agreement for purposes of Sections 48-103-101 through 48-103-505 of the TBCA, if applicable to a party, such that the provisions of such sections of the TBCA will not apply to this Agreement or any of the transactions contemplated hereby or thereby.
4. REPRESENTATIONS AND WARRANTIES OF BUYER BHC AND BUYER BANK.
As an inducement to the Bank to enter into this Agreement, Buyer BHC and Buyer Bank hereby make the same representations and warranties to Bank about Buyer BHC and Buyer Bank as Bank made to Buyer BHC and Buyer Bank in Section 3 about Bank, except for Sections (i) and (n)
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and except that Buyer BHC is a Tennessee corporation registered as a bank holding company under the Bank Holding Company Act of 1956, as amended. All references to Schedule of Exceptions required in this Section 4 to disclose exceptions to the representations and warranties, similar to the manner used in Section 3, shall refer to the same Section numbers as in Section 3 except with a designation of 4(_).
5. MUTUAL COVENANTS.
(a) Consents and Approvals . Buyer BHC and Buyer Bank covenant with the Bank, and the Bank covenants with Buyer BHC and Buyer Bank, that prior to the Effective Time they will take such steps or cause such steps to be taken as may be reasonably necessary, and use their respective best efforts to obtain any consents, approvals, permits, or authorizations which are required to be obtained in order to complete the Merger under any applicable federal or state laws or regulations, or otherwise, and they each will perform such other acts and execute and deliver such other documents necessary to consummate the Merger as contemplated under this Agreement at the earliest practicable time and without any unnecessary delay; provided, however, that the obligation to use best efforts, whether in regard to this Section 5(a) or any other Section of this Agreement, shall not require any party to engage in any conduct which, in its, his or her reasonable judgment or in the reasonable judgment of its, his or her legal counsel, may be in violation of any applicable law, regulation, rule or regulatory guideline, or of any material contract, indenture or lease to which such party may be obligated; and provided further, that the obligations of any of the parties to use their respective best efforts shall not require such party to accept or agree to the imposition of any term or condition as a condition precedent to obtaining such required consents, approvals, permits or authorizations if such party shall reasonably deem such requirement, term or condition to be unsatisfactory or unreasonable. Buyer BHC and Buyer Bank will prepare and make, and the other parties will cooperate in the making of, all regulatory and other filings required to be made to effect the Merger. Provided, however, that nothing contained in this Agreement shall be deemed to require any party to waive any condition to its obligation to consummate the Merger.
(b) Confidentiality . All parties covenant with each other that, prior to the Effective Time, because of the confidential nature of the negotiations surrounding the Merger, without first obtaining the written consent of the others, there will be no public disclosure as to the terms and conditions of this Agreement, or the transactions reflected herein, except for such public announcements as may be jointly approved by them, such disclosures as may be required incidental to obtaining the prior approval of any regulatory agency or official or third person to the consummation of the transactions described herein, and such disclosures as may be required in order to comply with applicable federal and state laws and regulations and the orders of courts of competent jurisdiction. Except for such disclosures as counsel for the Bank or Buyer BHC and Buyer Bank deem necessary to comply with applicable federal and state securities laws, if any, all matters pertaining to the parties, their investments and operations, agreements with regulators, employees, loans, earnings and operating ratios or similar information will be held and maintained in the strictest confidence. It is intended that this Section 5(b) will continue in effect regardless of whether the Merger is consummated. Schedule 5(b) contains the form of the press release
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agreed to be made by the parties announcing this Agreement and Buyer BHC and Buyer Bank acknowledge that Bank will file the same as part of a Form 8-K as pursuant to its obligations under the Securities Exchange Act of 1934, as amended (Exchange Act).
(c) Investigation; Access to Records . Buyer BHC and Buyer Bank shall have the right to conduct any reasonable investigation of the business, records or properties of the Bank and its subsidiaries financial and legal condition as Buyer BHC and Buyer Bank may deem necessary or advisable to familiarize itself and its advisers with such business, properties, and other matters. Bank shall have the right to conduct any reasonable investigation of the business, records or properties of the Buyer BHC and Buyer Bank and their subsidiaries financial and legal condition as Bank may deem necessary or advisable to familiarize itself and its advisers with such business, properties, and other matters. Any such investigation shall be conducted so as not to interfere with the business of the party being investigated. Buyer BHC and Buyer Bank and Bank shall, and shall use their best efforts to cause their accountants, counsel, and other representatives to maintain the confidentiality of all information furnished to them by the Bank and Buyer BHC and Buyer Bank hereto concerning their business, operations, and financial condition, and shall not use such information for any purpose except as necessary to effect the transactions contemplated by this Agreement. If this Agreement should be terminated prior to the Effective Time, Buyer BHC and Buyer Bank and the Bank shall, upon request, promptly return all documents, work papers and other materials (including copies made thereof) received from the other party or their representatives in connection with this Agreement or the transactions contemplated herein, and will return or destroy any such materials containing any confidential information supplied in connection therewith, and Buyer BHC and Buyer Bank and the Bank will maintain the confidentiality of all information delivered in connection with such transactions except for any such information that is readily ascertainable from public or published information or trade sources.
6. COVENANTS OF THE BANK.
The Bank covenants that, prior to the Effective Time, or the termination of this Agreement, whichever occurs first, except as Buyer BHC and Buyer Bank may otherwise consent in writing:
(a) Financial Covenants . The Bank shall not suffer a Material Adverse Effect prior to the Effective Time, and the Bank shall meet the following financial covenant (Bank Financial Covenant): the Tier 1 Capital of the Bank shall be no less than 95% of the amount reflected on the Banks September 30, 2013 Call Report - Schedule R, excluding Transaction Expenses, net of taxes, and excluding any payments to be made to Dissenting Shareholders.
(b) Charter and Bylaws . The Bank will not change, alter, amend or vote to amend its Charter or Bylaws or any of its subsidiaries corresponding chartering documents or bylaws.
(c) Notice of Actual or Threatened Breach . The Bank will promptly give written notice to Buyer BHC and Buyer Bank upon becoming aware of any pending or threatened occurrence of any event which would cause or constitute a breach of any of the
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representations, warranties or covenants made by the Bank to Buyer BHC and Buyer Bank in this Agreement, or which would materially alter or threaten consummation of the transactions contemplated herein, and will use their reasonable best efforts to prevent or to promptly remedy the same. The Bank will promptly give written notice to Buyer BHC and Buyer Bank upon becoming aware of any breach by Buyer BHC and Buyer Bank of any of its representations, warranties or covenants in this Agreement, which notice shall specify the facts constituting such breach.
(d) No Capital Changes. The Bank or any of its subsidiaries will not make any change in their authorized capital stock; issue, sell, purchase, or retire any of their capital stock; grant any option, warrant, call, or any other right to purchase or to convert any obligation into any of their capital stock; issue or sell or agree to issue or sell any other equity security or issue or sell any debt security other than: the issuance of Bank Common Stock upon the exercise of currently outstanding Bank Warrants and Bank Options or the conversion of currently outstanding Bank Preferred Stock, the taking of deposits and/or sale of deposit instruments, the purchase or sale of federal funds, the sale of securities under agreements to repurchase, and the sale of similar debt instruments, in each case only in the ordinary course of business.
(e) No Distributions . Prior to the Effective Time, the Bank will not declare or pay any dividend, or authorize or make any redemption or make or declare any other distribution of the Banks assets.
(f) Ordinary Course of Business. Except as may otherwise be required by regulatory authorities or by law, or requested and approved in writing by Buyer BHC and Buyer Bank, the Bank and its subsidiaries will carry on their respective businesses in, and only in, the usual, regular and ordinary course, and in substantially the same manner as heretofore conducted and, to the extent consistent with such businesses and with past practice, they will use their reasonable efforts to preserve intact the present business organizations of the Bank and its subsidiaries, keep available the services of the Banks and its subsidiaries present officers and employees, and preserve the Banks and its subsidiaries relationships with customers, depositors, creditors, correspondents, suppliers and others having business dealings with the Bank and/or its subsidiaries; provided, however, that this Section shall not require the Bank or any of its subsidiaries to offer special incentives to officers, employees, customers, depositors, creditors, correspondents, suppliers and others.
(g) Employee Compensation . Except as described in Article 8, the Bank and the Banks subsidiaries will not enter into, agree to or amend any employment contract or bonus, stock option, ESOP, profit-sharing, Pension Plan, Employee Plan, retirement, incentive or other similar arrangement, except as may be required by law or as consented to by Buyer BHC and Buyer Bank in writing; provided, that the Bank may continue with its existing plans to increase its mortgage lending department and the compensation and expenses related thereto without prior Buyer BHC or Buyer Bank consent.
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(h) Governmental or Regulatory Filings . True and correct copies of all reports filed by the Bank from the date hereof through the Effective Time with any applicable governmental or regulatory agencies shall be delivered or transmitted to Buyer BHC and Buyer Bank contemporaneously with the filing thereof with, or transmittal for filing to, the appropriate governmental or regulatory agency.
(i) Discharge of Debt . The Bank shall not pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of (i) liabilities reflected or reserved against in, or contemplated by, the most recent financial statements (or the notes thereto) of the Bank, or (ii) liabilities incurred in the ordinary course of business consistent with past practice since the date of such financial statements.
(j) Tax Treatment . The Bank shall not take any action that (without giving effect to any action taken or agreed to be taken by Buyer BHC and Buyer Bank under this Agreement) would prevent Buyer BHC and Buyer Bank from accounting for the business combination to be effected by the Merger as a reorganization under Section 368(a) of the Code.
(k) Acquisition Proposals .
(i) The Bank and its subsidiaries and each of their respective affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative retained by the Bank or any of its subsidiaries) shall immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal, as defined below. From the date of this Agreement through the Effective Time, the Bank shall not, nor shall it permit any of its subsidiaries to, nor shall it authorize or permit any of its or its subsidiaries directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its subsidiaries to, directly or indirectly through another person, (x) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or encourage any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, (y) participate in any discussions or negotiations regarding any Acquisition Proposal or (z) make or authorize any statement, recommendation or solicitation in support of any Acquisition Proposal. Any violation of the foregoing restrictions by any representative of the Bank, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of such party or otherwise, shall be deemed to be a breach of this Agreement by the Bank.
(ii) Notwithstanding the foregoing and subject to compliance with the other terms of this Section, the Board of Directors of the Bank shall be permitted, prior to its meeting of shareholders to be held pursuant to Section 6(b), to engage in discussions and negotiations with, or provide any nonpublic information or data to, any person in response to an unsolicited bona fide written Acquisition Proposal by such person made after the date of this Agreement which its Board of Directors concludes in good faith constitutes or is reasonably likely to result in a Superior
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Proposal, as defined below, if and only to the extent that the Board of Directors of the Bank reasonably determines in good faith (after consultation with outside legal counsel) that failure to do so would cause it to violate its fiduciary duties under applicable law and only after first entering into a confidentiality or nondisclosure agreement having provisions that are no less restrictive to such person than those contained in the nondisclosure agreement between the parties.
(iii) The Bank shall notify Buyer BHC promptly (but in no event later than two business days) after receipt of any Acquisition Proposal, or any request for nonpublic information relating to the Bank or any of its subsidiaries by any person that informs the Bank or any of its subsidiaries that it is considering making, or has made, an Acquisition Proposal, or any inquiry from any person seeking to have discussions or negotiations with such party relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the person making the Acquisition Proposal, inquiry or request and the material terms and conditions of any inquiries, proposals or offers (including a copy thereof if in writing and any related documentation or correspondence). The Bank shall also promptly, and in any event within two business days, notify Buyer BHC, orally and in writing, if it enters into discussions or negotiations concerning any Acquisition Proposal or provides nonpublic information or data to any person in accordance with this Section and keep Buyer BHC informed of the status and terms of any such proposals, offers, discussions or negotiations on a current basis, including by providing a copy of all material documentation or correspondence relating thereto.
(iv) The Bank agrees that it will not, and will not allow its subsidiaries, and its and their officers, directors, agents, representatives and advisors to, release any third party from, or waive any provisions of, any confidentiality or standstill agreement to which it or any of its subsidiaries is a party with respect to any Acquisition Proposal.
(v) Nothing in this Section shall (x) permit the Bank to terminate this Agreement or (y) affect any other obligation of the Bank under this Agreement. The Bank shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger unless the Termination Payment specified in Section 6(l) has been paid to Buyer BHC.
(vi) For purposes of this Agreement, the term Acquisition Proposal means any inquiry, proposal or offer, filing of any regulatory application or notice (whether in draft or final form) or disclosure of an intention to do any of the foregoing from any person relating to any (w) direct or indirect acquisition or purchase of a business that constitutes a substantial portion of the net revenues, net income or assets of a party or parties or any of their respective subsidiaries, (x) direct or indirect acquisition or purchase of any class of equity securities representing 10% or more of the voting power of a party or parties or any of their respective subsidiaries, (y) tender offer or exchange offer that if consummated would result in
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any person beneficially owning 10% or more of the voting power of a party or parties or any of their respective subsidiaries, or (z) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving a party or parties or any of their respective subsidiaries, in each case other than the transactions contemplated by this Agreement.
(vii) For purposes of this Agreement, Superior Proposal means a bona fide written Acquisition Proposal which the Board of Directors of a party concludes in good faith, after consultation with its financial advisors and legal advisors, taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal (including the Termination Payment specified below, and any other expense reimbursement provisions and conditions to consummation), (i) is more favorable to the shareholders of the party from a financial point of view, than the transactions contemplated by this Agreement and (ii) is fully financed or reasonably capable of being fully financed, reasonably likely to receive all required governmental approvals on a timely basis and otherwise reasonably capable of being completed on the terms proposed; provided that, for purposes of this definition of Superior Proposal, the term Acquisition Proposal shall have the meaning assigned to such term in Section 6(k)(v) except that the reference to 10% or more in the definition of Acquisition Proposal shall be deemed to be a reference to a majority and Acquisition Proposal shall only be deemed to refer to a transaction involving such party.
(l) Termination Payment . The Bank may terminate this Agreement at any time upon payment of liquidated damages of One Million Five Hundred Thousand Dollars ($1,500,000) by wire transfer of immediately available funds to Buyer BHC, which the parties agree is a reasonable amount and estimate of Buyer BHCs and Buyer Banks costs, expenses and damages in the event of such termination.
(m) Real Property Expenses . The Bank will not incur expenses related to the repair, maintenance or making of improvements to any of the real property owned by the Bank in excess of Twenty-five Thousand Dollars ($25,000), unless requested and approved in writing by Buyer BHC and Buyer Bank.
7. COVENANTS OF BUYER BHC AND BUYER BANK.
Buyer BHC and Buyer Bank hereby covenant with the Bank as follows:
(a) Financial Covenants . Neither the Buyer BHC nor the Buyer Bank shall suffer a Material Adverse Effect prior to the Effective Time, and the Buyer BHC shall meet the following financial covenant (Buyer BHC Financial Covenant): the Tier 1 Capital of the Buyer BHC shall be no less than 95% of the amount reflected on the Buyer BHCs September 30, 2013 FR Y 9-C, excluding Transaction Expenses, net of taxes.
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(b) Charter and Bylaws . Neither the Buyer BHC nor the Buyer Bank shall change, alter, amend or vote to amend its Charter or Bylaws or any of its subsidiaries corresponding chartering documents or bylaws.
(c) Notice of Actual or Threatened Breach . Buyer BHC and Buyer Bank will promptly give written notice to the Bank upon becoming aware of any pending or threatened occurrence of any event which would cause or constitute a breach of any of the representations, warranties or covenants made by Buyer BHC and Buyer Bank in this Agreement, or which would threaten consummation of the transactions contemplated herein and will use its respective reasonable best efforts to prevent or promptly remedy the same. Buyer BHC and Buyer Bank will promptly give written notice to the Bank upon becoming aware of any breach by the Bank, Buyer BHC, or Buyer Bank of their representations, warranties or covenants in this Agreement, which notice shall specify the facts constituting such breach.
(d) No Capital Changes. Neither the Buyer BHC nor the Buyer Bank shall, nor any of their respective subsidiaries, shall make any change in their authorized capital stock; issue, sell, purchase, or retire any of their capital stock; grant any option, warrant, call, or any other right to purchase or to convert any obligation into any of their capital stock; issue or sell or agree to issue or sell any other equity security or issue or sell any debt security other than: (i) current sales of common stock under the Confidential Private Placement Memorandum dated August 20, 2013, (ii) issuances of common stock pursuant to the Buyer BHCs 401(k) matching contribution for employees in stock, consistent with prior practices, (iii) grants of options, restricted stock units and other forms of equity incentive compensation currently available under the BHC Option Plan, (iv) the taking of deposits and/or sale of deposit instruments, (v) the purchase or sale of federal funds, (vi) the sale of securities under agreements to repurchase, and (vii) the sale of similar debt instruments, in each case only in the ordinary course of business.
(e) No Distributions . Prior to the Effective Time, Buyer BHC shall not declare or pay any dividend, or authorize or make any redemption or make or declare any other distribution of the Buyer BHCs assets.
(f) Employee Benefits . Commencing as soon as practicable following the Effective Time, Bank employees shall participate in any employee benefit plan or program maintained or hereafter established by Buyer BHC and Buyer Bank for its employees generally on the same terms and conditions as applicable to similarly situated Buyer BHC and Buyer Bank employees. In determining service for purposes of eligibility to participate and vesting under any Buyer BHC or Buyer Bank plan, the service of former Bank employees with the Bank before the Effective Time shall be treated as service with Buyer BHC or Buyer Bank to the same extent as if the former Bank employee had been employed by Buyer BHC or Buyer Bank. The foregoing sentence shall not be interpreted to provide Bank employees with any accrued benefits under any Buyer BHC or Buyer Bank employee benefit plan.
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(g) Indemnification; Directors and Officers Insurance .
(i) In the event of any threatened or actual claim, action, suit, proceeding or investigation, whether civil, criminal or administrative, including, without limitation, any such claim, action, suit, proceeding or investigation in which any individual who is now, or has been at any time prior to the date of this Agreement, or who becomes prior to the Effective Time, a director or officer or employee of Bank or any of its subsidiaries, or who is or was serving at the request of Bank or any of its subsidiaries as a director, officer, employee or agent of another person, including any entity specified in the Bank Disclosure Schedule (the Indemnified Parties), is, or is threatened to be, made a party based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that he is or was a director, officer or employee of Bank or any of its subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the transactions contemplated hereby, whether in any case asserted or arising before or after the Effective Time, the parties hereto agree to cooperate and use their best efforts to defend against and respond thereto. It is understood and agreed that after the Effective Time, Buyer BHC shall indemnify and hold harmless, as and to the fullest extent permitted by law, each such Indemnified Party against any losses, claims, damages, liabilities, costs, expenses (including reasonable attorneys fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by law upon receipt of any undertaking required by applicable law), judgments, fines and amounts paid in settlement in connection with any such threatened or actual claim, action, suit, proceeding or investigation.
(ii) Buyer BHC and Buyer Bank shall use their reasonable best efforts to cause the individuals serving as officers and directors of Bank, its subsidiaries or any entity specified in the Bank Disclosure Schedule immediately prior to the Effective Time to be covered for a period of five (5) years from the Effective Time (or the period of the applicable statute of limitations, if longer) by the directors and officers liability insurance policy maintained by Bank ( provided that Buyer BHC or Buyer Bank may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not less advantageous than such policy) with respect to acts or omissions occurring prior to the Effective Time which were committed by such officers and directors in their capacity as such.
(iii) In the event Buyer BHC or Buyer Bank or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Buyer BHC and Buyer Bank assume the obligations set forth in this section.
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(iv) The provisions of this Section shall survive the Effective Time and are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives.
(h) Governmental or Regulatory Filings . True and correct copies of all reports filed by the Buyer BHC and the Buyer Bank from the date hereof through the Effective Time with any applicable governmental or regulatory agencies shall be delivered or transmitted to Buyer BHC and Buyer Bank contemporaneously with the filing thereof with, or transmittal for filing to, the appropriate governmental or regulatory agency.
(i) Discharge of Debt . Neither Buyer BHC nor Buyer Bank shall pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of (i) liabilities reflected or reserved against in, or contemplated by, the most recent financial statements (or the notes thereto) of either of them, or (ii) liabilities incurred in the ordinary course of business consistent with past practice since the date of such financial statements.
(j) Other Acquisitions. Neither Buyer BHC nor Buyer Bank will close a merger, share exchange or other acquisition of a financial institution with deposits insured through the Federal Deposit Insurance Corporation (FDIC) or with any bank holding company registered under the Bank Holding Company Act of 1956, as amended, prior to the closing of the Merger, unless: (i) the three members of the Banks board of directors who will become directors of Buyer BHC and Buyer Bank at the Effective Time are included in such discussions and are entitled to a vote on such other acquisition, and (ii) the Bank consents to the closing of such other acquisition prior to the closing of the Merger, such consent not to be unreasonably withheld.
(k) Termination Payment . The Buyer BHC and/or the Buyer Bank may terminate this Agreement at any time upon payment of liquidated damages by wire transfer of immediately available funds of One Million Five Hundred Thousand Dollars ($1,500,000) to Bank, which the parties agree is a reasonable amount and estimate of Banks costs, expenses and damages in the event of such termination.
8. CONDITIONS PRECEDENT TO BUYER BHC AND BUYER BANKS OBLIGATIONS TO CONSUMMATE THE MERGER.
Unless waived by Buyer BHC and Buyer Bank in writing, the obligations of Buyer BHC and Buyer Bank to consummate the Merger shall be subject to the prior satisfaction of the following conditions:
(a) Representations and Warranties True . The representations and warranties of the Bank, set forth herein shall, taken as a whole, be true and correct in all material respects as of the date hereof and as of the Effective Time.
(b) Covenants Observed. The covenants set forth herein to be performed by the Bank, prior to the Effective Time shall have been complied with and performed in all material respects.
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(c) Corporate Action . The Board of Directors and the shareholders of the Bank shall have taken all corporate and/or other action necessary to be taken by them to approve and consummate the Merger, and shall have furnished Buyer BHC and Buyer Bank with certified copies of resolutions duly adopted by the Banks Boards of Directors and the Banks shareholders evidencing the same in substantially the form attached as Appendix B.
(d) Opinion of Bank Counsel . The Bank shall have delivered to Buyer BHC and Buyer Bank, dated as of the Closing Date, an opinion of legal counsel, in form and substance similar to Appendix C and reasonably satisfactory to Buyer BHC and Buyer Bank.
(e) Employment Agreements . The Bank shall have delivered to Buyer BHC and Buyer Bank, dated as of the Closing Date, an Employment Agreement in form and substance similar to Appendix D, and reasonably satisfactory to Buyer BHC and Buyer Bank, executed by the individuals listed on Confidential Schedule 8(e). In addition, retention agreements to be executed by other employees may requested by Buyer BHC.
(f) Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement . The Bank shall have delivered to Buyer BHC and Buyer Bank, dated not later than the Closing Date, a Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement, in form and substance similar to Appendix E and reasonably satisfactory to Buyer BHC and Buyer Bank, the individuals listed on Confidential Schedule 8(f).
(g) RESERVED .
(h) Governmental Approvals . All necessary approvals and authorizations by, filing and registrations with, and notifications to, all federal and state authorities required for the consummation of the Merger and the prevention of the termination of any licenses, permits or authorizations of the Bank, or its subsidiaries, the termination of which would materially impair the conduct of their business, shall have been duly obtained or made and shall not have been canceled or rescinded and all required waiting periods shall have expired. Such approvals shall include approval and analysis of all parties compliance with various banking laws including Community Reinvestment Act and insider transaction rules, and with other federal laws concerning anti-trust.
(i) Absence of Certain Changes or Events .
(i) Since September 30, 2013, no event or events have occurred that have had or are reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on Bank.
(ii) Since September 30, 2013, through and including the date of this Agreement, Bank and its subsidiaries have carried on their respective businesses in all material respects in the ordinary course.
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(j) Form S-4 Effective . The Form S-4 (as defined in Section 11(a)) shall have become effective under the Securities Act of 1933, as amended (Securities Act) and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC.
(k) No Injunction or Other Legal Proscription . No injunction, restraining order, stop order, bankruptcy proceeding, receivership, or other order or action of any federal or state court or agency in the United States which specifically and materially enjoins or otherwise prevents the consummation of the Merger in the good faith, commercially reasonable opinion of Buyer BHC and Buyer Bank shall be in effect, and no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or government agency which makes unlawful the consummation of the Merger.
(l) RESERVED .
(m) Bank Financial Covenant . The Bank shall meet the Bank Financial Covenant as defined in Section 6(a) above, immediately prior to the Effective Time. In the event the Bank does not meet the Bank Financial Covenant, Buyer BHC shall have the opportunity to adjust the Purchase Price, and Bank shall have the right to terminate the Agreement pursuant to Section 10(b).
(n) Timely Completion . The Effective Time must occur on or before the date specified in Section 10(d), subject to any regulatory or court imposed delay outside the control of the parties.
9. CONDITIONS PRECEDENT TO THE BANKS OBLIGATION TO CONSUMMATE THE MERGER.
Unless waived by the Bank, the obligations of the Bank to consummate the Merger shall be subject to prior satisfaction of the following conditions:
(a) Representations and Warranties True . The representations and warranties of Buyer BHC and Buyer Bank set forth herein shall, taken as a whole, be true and correct in all material respects as of the date hereof and as of the Effective Time.
(b) Covenants Observed . The covenants set forth herein to be performed by Buyer BHC and Buyer Bank prior to the Effective Time shall have been complied with and performed in all material respects.
(c) Corporate Action . The Boards of Directors of Buyer BHC and Buyer Bank and the shareholder of Buyer Bank shall have taken all corporate action necessary to be taken by them to approve the Merger and authorize this Agreement, and Buyer BHC and Buyer Bank shall have furnished the Bank with certified copies of resolutions duly adopted by the Boards of Directors of Buyer BHC and Buyer Bank and the shareholder of Buyer Bank evidencing the same in substantially the form attached as Appendix B.
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(d) Government Approvals . All necessary approvals and authorizations by, filing and registrations with, and notifications to, all federal and state authorities required for the consummation of the Merger and the prevention of the termination of any licenses, permits or authorizations of Buyer BHC and Buyer Bank, the termination of which would materially impair the conduct of their business, shall have been duly obtained or made and shall not have been canceled or rescinded and all required waiting periods shall have expired. Such approvals shall include approval and analysis of all parties compliance with various banking laws including Community Reinvestment Act and insider transaction rules, and with other federal laws concerning anti-trust.
(e) Absence of Certain Changes or Events .
(i) Since September 30, 2013, no event or events have occurred that have had or are reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on Buyer BHC and/or Buyer Bank.
(ii) Since September 30, 2013, through and including the date of this Agreement, Buyer BHC and/or Buyer Bank and their respective subsidiaries have carried on their respective businesses in all material respects in the ordinary course.
(f) Opinion of Financial Advisor. Bank has received the opinion of its financial advisor, dated the date of this Agreement, to the effect that the Exchange Ratio is fair, from a financial point of view, to such partys shareholders.
(g) Deposit of Merger Consideration. Buyer BHC has deposited the Purchase Price with the Exchange Agent as specified in Section 11(h).
(h) No Injunction or Other Legal Proscription . No injunction, restraining order, stop order, bankruptcy proceeding, receivership, or other order or action of any federal or state court or agency in the United States which specifically and materially enjoins or otherwise prevents the consummation of the Merger in the opinion of the Bank shall be in effect, and no action shall have been taken, and no statute, rule or regulation shall have been enacted, by any state or federal government or government agency which makes unlawful the consummation of the Merger.
(i) Form S-4 Effective . The Form S-4 shall have become effective under the Securities Act and no stop order suspending the effectiveness of the Form S-4 shall have been issued and no proceedings for that purpose shall have been initiated or threatened by the SEC.
(j) Opinion of Buyer BHC and Buyer Bank Counsel . The Buyer BHC and Buyer Bank shall have delivered to Bank, dated as of the Closing Date, an opinion of legal counsel, in form and substance similar to Appendix F and reasonably satisfactory to Bank.
(k) Federal Tax Opinion . The Bank shall have received the opinion of Baker Donelson Bearman Caldwell Bearman & Berkowitz, P.C., in form and substance reasonably satisfactory to Bank and its counsel, dated as of the Closing Date, substantially to the effect that, on the basis of facts, representations and assumptions set forth in each such opinion which are consistent with the state of facts existing at the Effective Time:
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(i) The Merger will constitute a reorganization under Section 368(a) of the Code, and Buyer BHC, Buyer Bank, and Bank will each be a party to the reorganization;
(ii) No gain or loss will be recognized by Buyer BHC, Buyer Bank, or Bank as a result of the Merger; and
(iii) No gain or loss will be recognized by shareholders of Bank who exchange their Bank Common Stock for the Merger Consideration pursuant to the Merger (except with respect to the Cash Consideration and cash received in lieu of a fractional share interest in Buyer BHC Common Stock).
In rendering such opinion, counsel may require and rely upon representations contained in certificates of officers of Buyer BHC, Buyer Bank, Bank and others.
(l) Buyer BHC Financial Covenant . The Buyer BHC shall meet the Buyer BHC Financial Covenant as defined in Section 7(a) above, immediately prior to the Effective Time. In the event the Buyer BHC does not meet the Buyer BHC Financial Covenant, Bank shall have the opportunity to adjust the Purchase Price, and Buyer BHC shall have the right to terminate the Agreement pursuant to Section 10(b).
(m) Timely Completion . The Effective Time must occur on or before the date specified in Section 10(d), subject to any regulatory or court imposed delay outside the control of the parties.
10. ABANDONMENT OF MERGER; IMPOSSIBILITY OF PERFORMANCE; BREACH; TERMINATION.
(a) Abandonment. Anything herein to the contrary notwithstanding, this Agreement may be terminated and the Merger abandoned at any time prior to the Effective Time, by mutual agreement of the Boards of Directors of the Bank and Buyer BHC and Buyer Bank. Upon such abandonment, all obligations of the parties hereunder shall terminate, except those set forth in Section 5(b) and in the last two sentences of Section 5(c), and each party shall bear its own expenses in connection with the Merger except as otherwise may be expressly provided herein.
(b) Impossibility of Performance . If the Merger is not consummated due to failure to obtain regulatory approval, or any other event or condition rendering performance of the Merger impossible, which arises or exists without the fault of any party, then this Agreement shall terminate, except that the following provisions shall survive any such termination: those set forth in Section 5(b), in the last two sentences of Section 5(c) and in Section 10(c), and each party shall bear its own expenses except as otherwise may be expressly provided herein.
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(c) Breach. In the event of a material breach of any representation, warranty, agreement or covenant contained in this Agreement by a party, the other party or parties, shall, if the breaching party fails to correct same promptly after receipt of written notice thereof, and if such other party or parties, if appropriate, is not itself in material breach of any representation, warranty, agreement or covenant contained in this Agreement, be entitled to terminate this Agreement (which termination shall have the effect provided in Section 10(b) with respect to a termination under that Section) and/or seek all legal and equitable remedies to which such party or parties, if appropriate, may be entitled, including specific performance of the provisions hereof. If any party willfully causes a material breach of any representation, warranty, covenant or agreement hereunder and fails promptly to correct same as soon as reasonably practicable after receipt of written notice thereof, such party shall pay the other partys or parties expenses arising from the negotiation and preparation of, or preparation for, filings and solicitations with respect to, this Agreement, including accounting fees, legal fees, filing fees, travel expenses, investment banking fees, together with other damages recoverable at law or in equity. However, the parties agree that specific performance shall not be available to any party receiving the Termination Payment. The term Termination Payment means, as to the Buyer BHC and the Buyer Bank, the fee payable by the Bank to Buyer BHC pursuant to Section 6(l) and, as to the Bank, the fee payable by the Buyer BHC and the Buyer Bank to Bank under Section 7(k).
(d) Termination . If the Merger shall not have been consummated on or before June 30, 2014, or such later date caused by regulatory, including the SEC, or court delays outside of the control of the parties or as may be agreed upon in writing by the parties, any party may, if it is not itself in breach of a representation, warranty, covenant or agreement hereunder, and if any condition to the obligation of a party to consummate the Merger is impossible to be satisfied by such date or such other date as may be agreed upon by the parties, terminate this Agreement (except those surviving provisions referred to in Section 10(b)) upon written notice to the other parties. In no event shall a party or person be entitled to the remedies provided in Section 10(c), whether termination is made pursuant to Section 10(b), 10(c), or 10(d) or otherwise, if such party or person was, at the time of termination, in material breach of any of its covenants or agreements herein.
(e) Acquisition Proposal Related to Bank . Buyer BHC may terminate this Agreement (except those surviving provisions referred to in Section 10(b)) on behalf of itself and Buyer Bank upon written notice to the Bank, if the Board of Directors of the Bank has authorized, recommended, proposed or publicly announced its intention to authorize, recommend or propose any Acquisition Proposal, as defined above in Section 6(k), with any person other than Buyer BHC or Buyer Bank. In such event, the Buyer BHC shall be entitled to immediate payment of the Termination Payment to the BHC Buyer by the Bank as provided in Section 6(l).
(f) Acquisition Proposal Related to Buyer BHC and/or Buyer Bank . Bank may terminate this Agreement (except those surviving provisions referred to in Section 10(b)) upon written notice to the other parties, if the Board of Directors of the Buyer BHC and/or the Buyer Bank has authorized, recommended, proposed or publicly announced its intention to authorize, recommend or propose any Acquisition Proposal, as defined above in Section 6(k), with any person other than Bank. In such event, the Bank shall be entitled to immediate payment of the Termination Payment to the Bank by the Buyer BHC and the Buyer Bank as provided in Section 7(k).
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11. REGISTRATION STATEMENT, JOINT PROXY STATEMENT AND PROSPECTUS, AND MERGER CONSIDERATION.
(a) Preparation and Filing of SEC Documents. The parties shall promptly prepare and file with the SEC a joint proxy statement/prospectus (Joint Proxy Statement/Prospectus) in definitive form relating to the meeting of Banks and Buyer BHCs shareholders to be held in connection with this Agreement and the transactions contemplated hereby and a registration statement on Form S-4 (the Form S-4) in which the Joint Proxy Statement will be included as a prospectus. The parties shall cooperate fully in making all commercially reasonable amendments, if any, required by the SEC. The declaration of effectiveness of the Form S-4 by the SEC shall be a condition of the Merger for all of the parties.
(b) Regulatory Matters .
(i) Bank and Buyer BHC shall promptly prepare and file with the SEC the Joint Proxy Statement and Buyer BHC shall promptly prepare and file with the SEC the Form S-4, in which the Joint Proxy Statement will be included as a prospectus. Each of Bank and Buyer BHC shall use their reasonable best efforts in consultation with their respective legal counsel to have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing, and Bank and Buyer BHC shall thereafter mail or deliver the Joint Proxy Statement to their respective shareholders. Buyer BHC shall also use its reasonable best efforts to obtain all necessary state securities law or Blue Sky permits and approvals required to carry out the transactions contemplated by this Agreement, and Bank shall furnish all information concerning Bank and the holders of Bank Capital Stock as may be reasonably requested in connection with any such action. If at any time prior to or after the Effective Time any information relating to either of the parties, or their respective affiliates, officers or directors, should be discovered by either party which should be set forth in an amendment or supplement to any of the Form S-4 or the Joint Proxy Statement/Prospectus so that such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated or made available on the SECs EDGAR database to the shareholders of Buyer BHC and Bank.
(ii) The parties hereto shall cooperate with each other and use their reasonable best efforts to promptly prepare and file all necessary documentation to effect all applications, notices, petitions and filings, to obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and governmental entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including, without limitation, the Merger), and to comply with the terms and conditions of all such permits, consents,
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approvals and authorizations of all such governmental entities. Bank and Buyer BHC shall have the right to review in advance, and, to the extent practicable, each will consult the other on, in each case subject to applicable laws relating to the exchange of information, all the information relating to Buyer BHC or Bank, as the case may be, and any of their respective subsidiaries, which appear in any filing made with, or written materials submitted to, any third party or any governmental entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and governmental entities necessary or advisable to consummate the transactions contemplated by this Agreement and each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein.
(iii) Each of Bank and Buyer BHC shall, upon request, furnish to the other all information concerning itself, its subsidiaries, directors, officers and shareholders and such other matters as may be reasonably necessary or advisable in connection with the Joint Proxy Statement, the Form S-4 or any other statement, filing, notice or application made by or on behalf of Bank, Buyer BHC or any of their respective subsidiaries to any governmental entity in connection with the Merger and the other transactions contemplated by this Agreement.
(iv) Each of Bank and Buyer BHC shall promptly advise the other upon receiving any communication from any governmental entity whose consent or approval is required for consummation of the transactions contemplated by this Agreement that causes such party to believe that there is a reasonable likelihood that any required governmental or other regulatory approvals will not be obtained, that the receipt of any such approval will be materially delayed or that non-customary or burdensome conditions or post-closing requirements might be imposed on any such required governmental or other regulatory approvals.
(v) Buyer BHC and Bank shall promptly furnish each other with copies of written communications received by Buyer BHC and Bank, as the case may be, or any of their respective subsidiaries from, or delivered by any of the foregoing to, any governmental entity in respect of the transactions contemplated by this Agreement.
(c) Access to Information.
(i) Upon reasonable notice and subject to applicable laws relating to the exchange of information, each of Bank and Buyer BHC, for the purposes of verifying the representations and warranties of the other and preparing for the Merger and the other matters contemplated by this Agreement, shall, and shall cause each of their respective subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the other party, access, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments and records and, during such period, each of Bank and Buyer BHC
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shall, and shall cause their respective subsidiaries to, make available to the other party (i) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws or federal or state banking laws (other than reports or documents which Bank or Buyer BHC, as the case may be, is not permitted to disclose under applicable law) and (ii) all other information concerning its business, properties and personnel as such party may reasonably request. Neither Bank nor Buyer BHC nor any of their respective subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of Banks or Buyer BHCs, as the case may be, customers, jeopardize the attorney-client privilege of the institution in possession or control of such information or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
(ii) Each of Buyer BHC and Bank agrees that it will not, and will cause its representatives not to, use any information obtained pursuant to this Section (as well as any other information obtained prior to the date hereof in connection with entering into this Agreement) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of law, each party will keep confidential, and will cause its representative to keep confidential, all information and documents obtained pursuant to this Section (as well as any other information obtained prior to the date hereof in connection with the entering into of this Agreement) unless such information (i) was already known to such party, (ii) becomes available to such party from other sources not known by such party to be bound by a confidentiality obligation, (iii) is disclosed with the prior written approval of the providing party or (iv) is or becomes readily ascertainable from publicly available sources. If this Agreement is terminated or the transactions contemplated by this Agreement shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing information and data as to the other party to be returned to the other party or shall promptly destroy such items and certify to such other party the destruction thereof.
(iii) No investigation by either of the parties or their respective representatives shall affect the representations and warranties of the other set forth herein.
(d) Shareholders Approvals. Each of Bank and Buyer BHC shall promptly call a meeting of its shareholders (a Bank Shareholders Meeting or Buyer BHC Shareholders Meeting, as the case may be) to be held as soon as reasonably practicable after the declaration of effectiveness of the Form S-4 by the SEC for the purpose of voting upon proposals to adopt and approve this Agreement and the Merger, and each shall use its reasonable best efforts, to cause such meetings to occur as soon as reasonably practicable and on the same date. The Board of Directors of each of Buyer BHC and Bank shall use its reasonable best efforts (and subject to its fiduciary duty) to obtain from the shareholders of
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Buyer BHC and Bank, as the case may be, the vote in favor of the adoption of this Agreement required by the TBCA and Buyer BHCs and Banks Charter and Bylaws, as the case may be, to consummate the transactions contemplated hereby (such approval a Bank Shareholder Approval or Buyer BHC Shareholder Approval, as the case may be). Notwithstanding anything to the contrary herein, unless this Agreement has been terminated, this Agreement shall be submitted to the shareholders of Bank and Buyer BHC at such meeting for the purpose of obtaining the Bank Shareholder Approval or Buyer BHC Shareholder Approval, as the case may be, and voting on the approval and adoption of this Agreement and nothing contained herein shall be deemed to relieve Bank and Buyer BHC of such obligations. By executing this Agreement, Buyer BHC is approving this Agreement and the Merger as the sole shareholder of Buyer Bank and waiving any requirement of notice ( by publication or otherwise) of, or a meeting of, the shareholder of the Buyer Bank.
(e) Information Supplied. None of the information supplied or to be supplied by a party for inclusion or incorporation by reference in (i) the Form S-4 will, at the time the Form S-4 is filed with the SEC and at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, and (ii) the Joint Proxy Statement will, at the date of mailing to shareholders and at the times of the meetings of shareholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The Joint Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC thereunder, except that no representation or warranty is made by a party with respect to statements made or incorporated by reference therein based on information supplied by an unaffiliated party for inclusion or incorporation by reference in the Joint Proxy Statement.
(f) RESERVED .
(g) Exemption from Liability Under Section 16(b). Buyer BHC and Bank agree that, in order to most effectively compensate and retain Bank Insiders (as defined below) in connection with the Merger, both prior to and after the Effective Time, it is desirable that Bank Insiders not be subject to a risk of liability under Section 16(b) of the Exchange Act to the fullest extent permitted by applicable law in connection with the conversion of shares of Bank Common Stock and Bank Stock Options into shares of Buyer BHC Common Stock in the Merger, and for that compensatory and retentive purpose agree to the provisions of this Section. Assuming that Bank delivers to Buyer BHC the Section 16 Information (as defined below) in a timely fashion, the Board of Directors of Buyer BHC, or a committee of Non-Employee Directors thereof (as such term is defined for purposes of Rule 16b-3(d) under the Exchange Act), shall adopt a resolution providing that the receipt by Bank Insiders of Buyer BHC Common Stock in exchange for shares of Bank Common Stock, and of options on Buyer BHC Common Stock upon assumption of options to purchase Bank Common Stock, in each case pursuant to the transactions contemplated by this Agreement and to the extent such securities are listed in the Section 16 Information, are
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intended to be exempt from liability pursuant to Section 16(b) under the Exchange Act. The term Section 16 Information shall mean information accurate in all material respects regarding Bank Insiders, the number of shares of Bank Common Stock held by each such Bank Insider and expected to be exchanged for Buyer BHC Common Stock in the Merger, and the number and description of the options on Bank Common Stock held by each such Bank Insider and expected to be assumed by Buyer BHC in connection with the Merger; provided that the requirement for a description of any Bank Stock Options shall be deemed to be satisfied if copies of all Bank Stock Plans, and forms of agreements evidencing grants thereunder, under which such Bank Stock Options have been granted, have been made available to Buyer BHC. The term Bank Insiders shall mean those officers and directors of Bank who are subject to the reporting requirements of Section 16(a) of the Exchange Act and who are listed in the Section 16 Information.
(h) Deposit of Merger Consideration. At or immediately prior to the Effective Time, Buyer BHC shall deposit, or shall cause to be deposited, with a bank, trust company, or registered transfer agent reasonably acceptable to each of Bank and Buyer BHC (the Exchange Agent), for the benefit of the holders of certificates or instruments evidencing shares of or rights to obtain Bank Stock (Certificates), for exchange in accordance with this Section, the cash consideration (Cash Consideration), certificates representing the shares of Buyer BHC Common Stock constituting the stock consideration (Stock Consideration) and cash in lieu of any fractional shares (such cash and certificates for shares of Buyer BHC Common Stock, together with any dividends or distributions with respect thereto, being hereinafter referred to as the Exchange Fund), to be issued and/or paid pursuant to this Agreement in exchange for outstanding shares of Bank Stock.
(i) Delivery of Merger Consideration .
(i) As soon as practicable, the Exchange Agent shall mail to each holder of record of one or more Certificates a letter of transmittal in customary form as reasonably agreed by the parties (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon delivery of the Certificates to the Exchange Agent) and instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration. Upon proper surrender to the Exchange Agent of a Certificate or Certificates for exchange and cancellation, together with such properly completed and duly executed letter of transmittal in such form as the Exchange Agent may reasonably require, the holder of such Certificate or Certificates shall be entitled to receive in exchange therefor, as applicable, (i) the Merger Consideration that such holder of Bank Common Stock shall have become entitled pursuant to the provisions of Article 1; and (ii) a check representing the amount of any dividends or distributions that such holder is entitled to receive pursuant to this Agreement, and the Certificate or Certificates so surrendered shall forthwith be cancelled. No interest will be paid or accrued on any cash or on any unpaid dividends and distributions payable to holders of Certificates.
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(ii) No dividends or other distributions declared with respect to Buyer BHC Common Stock shall be paid to the holder of any unsurrendered Certificate with respect to the shares of Buyer BHC Common Stock represented thereby until the holder thereof shall surrender such Certificate in accordance with this Article 11. After the surrender of a Certificate in accordance with this Article 11, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to shares of Buyer BHC Common Stock represented by such Certificate.
(iii) If any certificate representing shares of Buyer BHC Common Stock is to be issued in a name other than that in which the Certificate or Certificates surrendered in exchange therefor is or are registered, it shall be a condition of the issuance thereof that the Certificate or Certificates so surrendered shall be properly endorsed (or accompanied by an appropriate instrument of transfer) and otherwise in proper form for transfer, and that the person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other taxes required by reason of the issuance of a certificate representing shares of Buyer BHC Common Stock in any name other than that of the registered holder of the Certificate or Certificates surrendered, or required for any other reason, or shall establish to the reasonable satisfaction of the Exchange Agent that such tax has been paid or is not payable.
(iv) After the Effective Time, there shall be no transfers on the stock transfer books of Bank of the shares of Bank Common Stock that were issued and outstanding immediately prior to the Effective Time. If, after the Effective Time, certificates representing such shares are presented for transfer to the Exchange Agent, they shall be cancelled and exchanged for the Merger Consideration.
(v) Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Buyer BHC Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to Buyer BHC Common Stock shall be payable on or with respect to any fractional share, and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a shareholder of Buyer BHC.
(vi) Any portion of the Exchange Fund that remains unclaimed by the shareholders of Bank as of the first anniversary of the Effective Time shall be paid to Buyer BHC. Any former shareholders of Bank who have not theretofore complied with this Article 11 shall thereafter look only to Buyer BHC for payment of the Merger Consideration and any unpaid dividends and distributions on the Buyer BHC Common Stock deliverable in respect of each share of Bank Common Stock such shareholder holds as determined pursuant to this Agreement, in each case, without any interest thereon. Notwithstanding the foregoing, none of Bank, Buyer BHC, the Exchange Agent or any other person shall be liable to any former holder of shares of Bank Common Stock for any amount delivered in good faith to a public official pursuant to applicable abandoned property, escheat or similar laws.
(vii) In the event any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by Buyer BHC, the posting by
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such person of a bond in such amount as Buyer BHC may determine is reasonably necessary as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent will issue the Merger Consideration in exchange for such lost, stolen or destroyed Certificate.
12. GENERAL.
(a) Closing. The closing of the transactions contemplated by this Agreement shall take place at a location and on a date and at a time to be agreed upon by the parties or, if they cannot agree, on the date of which any party shall give at least five (5) days advance notice to the other parties following satisfaction of the conditions to consummation of the Merger that may not, as a matter of law, be waived. Notwithstanding anything herein to the contrary, no party shall be required to waive a condition that is within its power under the terms of the Agreement not to waive. Buyer BHC and Buyer Bank or the Bank may, at or prior to the Closing, delay the Closing for up to thirty (30) days by notice to the other parties specifying the delayed date of the Closing, if necessary to permit satisfaction of any condition to the obligations of the other parties that cannot be satisfied at the Closing as originally scheduled and the satisfaction of which by the delayed Closing Date is not impossible.
(b) Amendment. The parties may, by mutual agreement of the Boards of Directors of Buyer BHC and Buyer Bank and the Bank, amend, modify or supplement this Agreement or any Appendix to the Agreement in such manner as may be agreed upon by them in writing, at any time before or after approval of the Merger and the transactions contemplated thereby by the shareholders of the Bank, Buyer BHC, and Buyer Bank, provided that no such amendment, modification or supplement shall be made which reduces the Purchase Price without the further approval of the Bank shareholders. This Agreement may be amended at any time and, as amended, restated by the President of Buyer BHC and Buyer Bank and the Chief Executive Officer of the Bank, without the necessity for approval by their respective Boards of Directors or shareholders, to correct typographical errors or to change erroneous references or cross-references, or to make such other changes which are immaterial to the substance of the transactions contemplated hereby. This Agreement may not be otherwise amended except by an instrument in writing signed on behalf of all the parties hereto.
(c) Extensions and Waivers . At any time prior to the Effective Time, the parties hereto, by action taken by their respective Boards of Directors or duly authorized officers, may: (i) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (ii) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered pursuant hereto, and (iii) waive compliance with any of the covenants or agreements of the other parties or with any of the conditions to the obligations of the waiving party contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party. No such waiver or extension shall imply any further waiver or extension.
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(d) Counterparts . For the convenience of the parties and to facilitate the filing of this Agreement with regulatory authorities, any number of counterparts hereof may be executed, and each such counterpart shall be deemed to be an original instrument, but all such counterparts together shall constitute but one agreement.
(e) Notices . All notices, requests, consents, and other communications hereunder shall be in writing, and shall be personally delivered, delivered by facsimile, or mailed certified or registered mail, return receipt requested, postage prepaid, to the addresses indicated above. Notices shall be deemed to have been received when delivered personally or faxed or, if mailed, the date of such signed receipt.
(f) Entire Agreement . This Agreement: (i) constitutes the entire Agreement between the parties hereto and supersedes all other prior agreements and undertakings, both written and oral, of the parties, or any of them, with respect to the subject matter hereof; (ii) is not intended to confer upon any other person or entity any rights or remedies hereunder; and (iii) shall not be assigned except by operation of law.
(g) Governing Law; Submission to Jurisdiction . Except where controlled by federal law, this Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and be governed by the internal laws of the State of Tennessee, without reference to choice or conflict of law principles thereof. Any legal action or proceeding with respect to this Agreement against any party shall be brought only in a court of record of, or in any federal court located in Davidson County in the State of Tennessee, which shall have exclusive jurisdiction and venue for such purpose. By execution and delivery of this Agreement, the parties hereby accept for themselves, and in respect of their property, generally and unconditionally, the jurisdiction and venue of the aforesaid courts sitting in Davidson County, Tennessee, and waive any objection to the laying of venue on the grounds of forum non convenience which they may now or hereafter have to the bringing or maintaining of any such action or proceeding in such jurisdiction.
(h) Advice of Adverse Changes . Each party shall each promptly advise the other party of any change or event (i) having a Material Adverse Effect on it or (ii) which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties, covenants or agreements contained herein; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties (or remedies with respect thereto) or the conditions to the obligations of the parties under this Agreement; provided further that a failure to comply with this section shall not constitute the failure of any condition set forth in this Agreement to be satisfied unless the underlying Material Adverse Effect or material breach would independently result in the failure of a condition set forth in this Agreement to be satisfied.
(i) Nonsurvival of Representations, Warranties and Agreements. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement (other than the Confidentiality Agreement, which shall terminate in accordance with its terms) shall survive the Effective Time, except for those related to confidentiality and those related to payment (or nonpayment) of a Termination Payment.
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(j) Interpretation. When a reference is made in this Agreement to Sections, Exhibits or Schedules, such reference shall be to a Section of or Exhibit or Schedule to this Agreement, unless otherwise indicated. The Disclosure Schedules and each other Exhibit and Schedule shall be deemed part of this Agreement and included in any reference to this Agreement. The table of contents and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words include, includes or including are used in this Agreement, they shall be deemed to be followed by the words without limitation. Whenever the singular or plural forms of any word is used in this Agreement, such word shall encompass both the singular and plural form of such word.
(k) Publicity. Except as otherwise required by applicable law or the rules of the SEC, including Regulation FD, or the rules or regulations of the Federal Reserve System or the Tennessee Department of Financial Institutions, neither Bank, Buyer BHC, nor Buyer Bank shall, or shall permit any of its subsidiaries to, issue or cause the publication of any press release or other public announcement with respect to, or otherwise make any public statement concerning, the transactions contemplated by this Agreement without the prior consent of Buyer BHC, in the case of a proposed announcement or statement by Bank, or Bank, in the case of a proposed announcement or statement by Buyer BHC or Buyer Bank, which consents shall not be unreasonably withheld or delayed.
(l) Assignment; Third Party Beneficiaries. Neither this Agreement nor any of the rights, interests or obligations shall be assigned by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Except as otherwise specifically provided herein, this Agreement (including the documents and instruments referred to herein) is not intended to confer upon any person other than the parties hereto any rights or remedies hereunder.
(m) Material Adverse Effect Defined. As used in this Agreement, the term Material Adverse Effect means, with respect to any party to this Agreement, a material adverse effect on (i) the business, operations, results of operations, financial condition or prospects of such party and its subsidiaries taken as a whole, or (ii) the ability of a party to timely consummate the transactions contemplated hereby; provided, however, that with respect to clause (i) the following shall not be deemed to have a Material Adverse Effect: any change or event caused by or resulting from (I) changes in prevailing interest rates, currency exchange rates or other economic or monetary conditions in the United States or elsewhere, (II) changes in United States or foreign securities markets, including changes in price levels or trading volumes, (III) changes or events, after the date hereof, affecting the financial services industry generally and not specifically relating to Buyer BHC or Bank or their respective subsidiaries, as the case may be, (IV) changes, after the date hereof, in generally accepted accounting principles or regulatory accounting requirements applicable to
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banks or savings associations and their holding companies generally, (V) changes, after the date hereof, in laws, rules or regulations of general applicability or interpretations thereof by any governmental entity, (VI) actions or omissions of Buyer BHC and Buyer Bank on the one hand and/or the Bank on the other taken with the prior written consent of the other or required hereunder, (VII) the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby or the announcement thereof, or (VIII) any outbreak of major hostilities in which the United States is involved or any act of terrorism within the United States or directed against its facilities or citizens wherever located; and provided, further, that in no event shall a change in the trading prices of a partys capital stock, by itself, be considered material or constitute a Material Adverse Effect.
(n) Knowledge . Reference to knowledge of a party means the actual knowledge of officers above the level of Vice President.
(o) Enforceability . The parties acknowledge that, notwithstanding their belief that a contract is enforceable, enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws from time to time in effect which affect creditors rights generally, and by legal and equitable limitations on the availability of injunctive relief, specific performance and other equitable remedies which are available only in the discretion of a court.
(p) Headings . The headings of the Sections and subsections of this Agreement are for convenience of reference only and shall not be taken into account in the interpretation of this Agreement.
[Signatures on immediately following page.]
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EACH PARTY TO THIS AGREEMENT WAIVES ALL RIGHT TO A TRIAL BY JURY WITH RESPECT TO THIS AGREEMENT, AND ALL MATTERS RELATED THERETO, AND EACH PARTY AGREES TO A TRIAL BY THE COURT SITTING WITHOUT A JURY.
IN WITNESS WHEREOF , the parties have caused this instrument to be executed and delivered as of the day and year first above written, such execution having been duly authorized by the respective Boards of Directors of Buyer BHC, Buyer Bank, and the Bank.
MIDSOUTH BANK | FRANKLIN FINANCIAL NETWORK, INC. | |||||||
By: | /s/ Lee M. Moss | By: | /s/ Richard E. Herrington | |||||
Lee M. Moss, Chairman and | Richard E. Herrington, President and | |||||||
Chief Executive Officer | Chief Executive Officer | |||||||
Dated: | November 21, 2013 | Dated: | November 21, 2013 | |||||
FRANKLIN SYNERGY BANK | ||||||||
By: | /s/ Richard E. Herrington | |||||||
Richard E. Herrington, President and | ||||||||
Chief Executive Officer | ||||||||
Dated: | November 21, 2013 |
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C HAPTER 23 OF T ITLE 48 OF THE T ENNESSEE C ODE A NNOTATED
D ISSENTERS R IGHTS
PART I RIGHT TO DISSENT AND OBTAIN PAYMENT FOR SHARES
48-23-101. Chapter definitions. As used in this chapter, unless the context otherwise requires:
(1) Beneficial shareholder means the person who is a beneficial owner of shares held by a nominee as the record shareholder;
(2) Corporation means the issuer of the shares held by a dissenter before the corporate action, and, for purposes of §§ 48-23-20348-23-302, includes the survivor of a merger or conversion or the acquiring entity in a share exchange of that issuer;
(3) Dissenter means a shareholder who is entitled to dissent from corporate action under §48-23-102 and who exercises that right when and in the manner required by part 2 of this chapter;
(4) Fair value, with respect to a dissenters shares, means the value of the shares immediately before the effectuation of the corporate action to which the dissenter objects, excluding any appreciation or depreciation in anticipation of the corporate action;
(5) Interest means interest from the effective date of the corporate action that gave rise to the shareholders right to dissent until the date of payment, at the average auction rate paid on United States treasury bills with a maturity of six (6) months (or the closest maturity thereto) as of the auction date for such treasury bills closest to such effective date;
(6) Record shareholder means the person in whose name shares are registered in the records of a corporation or the beneficial owner of shares to the extent of the rights granted by a nominee certificate on file with a corporation; and
(7) Shareholder means the record shareholder or the beneficial shareholder.
48-23-102. Right to dissent.
(a) A shareholder is entitled to dissent from, and obtain payment of the fair value of the shareholders shares in the event of, any of the following corporate actions:
(1) Consummation of a plan of merger to which the corporation is a party:
(A) If shareholder approval is required for the merger by §48-21-104 or the charter and the shareholder is entitled to vote on the merger if the merger is submitted to a vote at a shareholders meeting or the shareholder is a nonconsenting shareholder under §48-17-104(b) who would have been entitled to vote on the merger if the merger had been submitted to a vote at a shareholders meeting; or
(B) If the corporation is a subsidiary that is merged with its parent under §48-21-105;
(2) Consummation of a plan of share exchange to which the corporation is a party as the corporation whose shares will be acquired, if the shareholder is entitled to vote on the plan if the plan is submitted to a vote at a shareholders meeting or the shareholder is a nonconsenting shareholder under §48-17-104(b) who would have been entitled to vote on the plan if the plan had been submitted to a vote at a shareholders meeting;
(3) Consummation of a sale or exchange of all, or substantially all, of the property of the corporation other than in the usual and regular course of business, if the shareholder is entitled to vote on the sale or exchange if the sale or exchange is submitted to a vote at a shareholders meeting or the shareholder is a nonconsenting shareholder under §48-17-104(b) who would have been entitled to vote on the sale or exchange if the sale or exchange had been submitted to a vote at a shareholders meeting, including a sale of all, or substantially all, of the property of the corporation in dissolution, but not including a sale pursuant to court order or a sale for cash pursuant to a plan by which all or substantially all of the net proceeds of the sale will be distributed to the shareholders within one (1) year after the date of sale;
Appendix B | Page 1 |
(4) An amendment of the charter that materially and adversely affects rights in respect of a dissenters shares because it:
(A) Alters or abolishes a preferential right of the shares;
(B) Creates, alters, or abolishes a right in respect of redemption, including a provision respecting a sinking fund for the redemption or repurchase, of the shares;
(C) Alters or abolishes a preemptive right of the holder of the shares to acquire shares or other securities;
(D) Excludes or limits the right of the shares to vote on any matter, or to cumulate votes, other than a limitation by dilution through issuance of shares or other securities with similar voting rights; or
(E) Reduces the number of shares owned by the shareholder to a fraction of a share, if the fractional share is to be acquired for cash under §48-16-104;
(5) Any corporate action taken pursuant to a shareholder vote to the extent the charter, bylaws, or a resolution of the board of directors provides that voting or nonvoting shareholders are entitled to dissent and obtain payment for their shares; or
(6) Consummation of a conversion of the corporation to another entity pursuant to chapter 21 of this title.
(b) A shareholder entitled to dissent and obtain payment for the shareholders shares under this chapter may not challenge the corporate action creating the shareholders entitlement unless the action is unlawful or fraudulent with respect to the shareholder or the corporation.
(c) Notwithstanding subsection (a), no shareholder may dissent as to any shares of a security which, as of the date of the effectuation of the transaction which would otherwise give rise to dissenters rights, is listed on an exchange registered under §6 of the Securities Exchange Act of 1934, compiled in 15 U.S.C. §78f, as amended, or is a national market system security, as defined in rules promulgated pursuant to the Securities Exchange Act of 1934, compiled in 15 U.S.C. §78a, as amended.
Section 48-23-103 Dissent by nominees and beneficial owners.
(a) A record shareholder may assert dissenters rights as to fewer than all the shares registered in the record shareholders name only if the record shareholder dissents with respect to all shares beneficially owned by any one (1) person and notifies the corporation in writing of the name and address of each person on whose behalf the record shareholder asserts dissenters rights. The rights of a partial dissenter under this subsection (a) are determined as if the shares as to which the partial dissenter dissents and the partial dissenters other shares were registered in the names of different shareholders.
(b) A beneficial shareholder may assert dissenters rights as to shares of any one (1) or more classes held on the beneficial shareholders behalf only if the beneficial shareholder:
(1) Submits to the corporation the record shareholders written consent to the dissent not later than the time the beneficial shareholder asserts dissenters rights; and
(2) Does so with respect to all shares of the same class of which the person is the beneficial shareholder or over which the person has power to direct the vote.
Appendix B | Page 2 |
PART II PROCEDURE FOR EXERCISE OF DISSENTERS RIGHTS
48-23-201. Notice of dissenters rights. (a) Where any corporate action specified in §48-23-102(a) is to be submitted to a vote at a shareholders meeting, the meeting notice (including any meeting notice required under chapters 11-27 to be provided to nonvoting shareholders) must state that the corporation has concluded that the shareholders are, are not, or may be entitled to assert dissenters rights under this chapter. If the corporation concludes that dissenters rights are or may be available, a copy of this chapter must accompany the meeting notice sent to those record shareholders entitled to exercise dissenters rights.
(b) In a merger pursuant to §48-21-105, the parent corporation must notify in writing all record shareholders of the subsidiary who are entitled to assert dissenters rights that the corporate action became effective. Such notice must be sent within ten (10) days after the corporate action became effective and include the materials described in §48-23-203.
(c) Where any corporate action specified in §48-23-102(a) is to be approved by written consent of the shareholders pursuant to §48-17-104(a) or §48-17-104(b):
(1) Written notice that dissenters rights are, are not, or may be available must be sent to each record shareholder from whom a consent is solicited at the time consent of such shareholder is first solicited and, if the corporation has concluded that dissenters rights are or may be available, must be accompanied by a copy of this chapter; and
(2) Written notice that dissenters rights are, are not, or may be available must be delivered together with the notice to nonconsenting and nonvoting shareholders required by §48-17-104(e) and (f), may include the materials described in §48-23-203 and, if the corporation has concluded that dissenters rights are or may be available, must be accompanied by a copy of this chapter.
(d) A corporations failure to give notice pursuant to this section will not invalidate the corporate action.
48-23-202. Notice of intent to demand payment. (a) If a corporate action specified in §48-23-102(a) is submitted to a vote at a shareholders meeting, a shareholder who wishes to assert dissenters rights with respect to shares for which dissenters rights may be asserted under this chapter:
(1) Must deliver to the corporation, before the vote is taken, written notice of the shareholders intent to demand payment if the proposed action is effectuated; and
(2) Must not vote, or cause or permit to be voted, any such shares in favor of the proposed action.
(b) If a corporate action specified in §48-23-102(a) is to be approved by less than unanimous written consent, a shareholder who wishes to assert dissenters rights with respect to shares for which dissenters rights may be asserted under this chapter must not sign a consent in favor of the proposed action with respect to such shares.
(c) A shareholder who fails to satisfy the requirements of subsection (a) or subsection (b) is not entitled to payment under this chapter.
48-23-203. Dissenters notice. (a) If a corporate action requiring dissenters rights under §48-23-102(a) becomes effective, the corporation must send a written dissenters notice and form required by subdivision (b)(1) to all shareholders who satisfy the requirements of §48-23-202(a) or §48-23-202(b). In the case of a merger under §48-21-105, the parent must deliver a dissenters notice and form to all record shareholders who may be entitled to assert dissenters rights.
(b) The dissenters notice must be delivered no earlier than the date the corporate action specified in §48-23-102(a) became effective, and no later than (10) days after such date, and must:
(1) Supply a form that:
(A) Specifies the first date of any announcement to shareholders made prior to the date the corporate action became effective of the principal terms of the proposed corporate action;
Appendix B | Page 3 |
(B) If such announcement was made, requires the shareholder asserting dissenters rights to certify whether beneficial ownership of those shares for which dissenters rights are asserted was acquired before that date; and
(C) Requires the shareholder asserting dissenters rights to certify that such shareholder did not vote for or consent to the transaction;
(2) State:
(A) Where the form must be sent and where certificates for certificated shares must be deposited and the date by which those certificates must be deposited, which date may not be earlier than the date for receiving the required form under subdivision (b)(2)(B);
(B) A date by which the corporation must receive the form, which date may not be fewer than forty (40) nor more than sixty (60) days after the date the subsection (a) dissenters notice is sent, and state that the shareholder shall have waived the right to demand payment with respect to the shares unless the form is received by the corporation by such specified date;
(C) The corporations estimate of the fair value of shares;
(D) That, if requested in writing, the corporation will provide, to the shareholder so requesting, within ten (10) days after the date specified in subdivision (b)(2)(B) the number of shareholders who return the forms by the specified date and the total number of shares owned by them; and
(E) The date by which the notice to withdraw under §48-23-204 must be received, which date must be within twenty (20) days after the date specified in subdivision (b)(2)(B); and
(3) Be accompanied by a copy of this chapter if the corporation has not previously sent a copy of this chapter to the shareholder pursuant to §48-23-201.
48-23-204. Duty to demand payment. (a) A shareholder sent a dissenters notice described in §48-23-203 must demand payment, certify whether the shareholder acquired beneficial ownership of the shares before the date required to be set forth in the dissenters notice pursuant to §48-23-203(b)(2), and deposit the shareholders certificates in accordance with the terms of the notice.
(b) The shareholder who demands payment and deposits the shareholders share certificates under subsection (a) retains all other rights of a shareholder until these rights are cancelled or modified by the effectuation of the proposed corporate action.
(c) A shareholder who does not demand payment or deposit the shareholders share certificates where required, each by the date set in the dissenters notice, is not entitled to payment for the shareholders shares under this chapter.
(d) A demand for payment filed by a shareholder may not be withdrawn unless the corporation with which it was filed, or the surviving corporation, consents thereto.
Section 48-23-205 Share restrictions. (a) The corporation may restrict the transfer of uncertificated shares from the date the demand for their payment is received until the proposed corporate action is effectuated or the restrictions released under §48-23-207.
(b) The person for whom dissenters rights are asserted as to uncertificated shares retains all other rights of a shareholder until these rights are cancelled or modified by the effectuation of the proposed corporate action.
Section 48-23-206 Payment. (a) Except as provided in §48-23-208, as soon as the proposed corporate action is effectuated, or upon receipt of a payment demand, whichever is later, the corporation shall pay each dissenter who complied with §48-23-204 the amount the corporation estimates to be the fair value of each dissenters shares, plus accrued interest.
(b) The payment must be accompanied by:
Appendix B | Page 4 |
(1) The corporations balance sheet as of the end of a fiscal year ending not more than sixteen (16) months before the date of payment, an income statement for that year, a statement of changes in shareholders equity for that year, and the latest available interim financial statements, if any;
(2) A statement of the corporations estimate of the fair value of the shares;
(3) An explanation of how the interest was calculated;
(4) A statement of the dissenters right to demand payment under §48-23-209; and
(5) A copy of this chapter if the corporation has not previously sent a copy of this chapter to the shareholder pursuant to §48-23-201 or §48-23-203.
Section 48-23-207 Failure to take action. (a) If the corporation does not effectuate the proposed action that gave rise to the dissenters rights within two (2) months after the date set for demanding payment and depositing share certificates, the corporation shall return the deposited certificates and release the transfer restrictions imposed on uncertificated shares.
(b) If, after returning deposited certificates and releasing transfer restrictions, the corporation effectuates the proposed action, it must send a new dissenters notice under §48-23-203 and repeat the payment demand procedure.
Section 48-23-208 After-acquired shares. A corporation may elect to withhold payment required by §48-23-206 from a dissenter unless the dissenter was the beneficial owner of the shares before the date set forth in the dissenters notice as the date of the first announcement to news media or to shareholders of the principal terms of the proposed corporate action.
(b) To the extent the corporation elects to withhold payment under subsection (a), after effectuating the proposed corporate action, it shall estimate the fair value of the shares, plus accrued interest, and shall pay this amount to each dissenter who agrees to accept it in full satisfaction of the dissenters demand. The corporation shall send with its offer a statement of its estimate of the fair value of the shares, an explanation of how the interest was calculated, and a statement of the dissenters right to demand payment under §48-23-209.
Section 48-23-209 Procedure if shareholder dissatisfied with payment or offer. (a) A dissenter may notify the corporation in writing of the dissenters own estimate of the fair value of the dissenters shares and amount of interest due, and demand payment of the dissenters estimate (less any payment under §48-23-206), or reject the corporations offer under §48-23-208 and demand payment of the fair value of the dissenters shares and interest due, if:
(1) The dissenter believes that the amount paid under §48-23-206 or offered under §48-23-208 is less than the fair value of the dissenters shares or that the interest due is incorrectly calculated;
(2) The corporation fails to make payment under §48-23-206 within two (2) months after the date set for demanding payment; or
(3) The corporation, having failed to effectuate the proposed action, does not return the deposited certificates or release the transfer restrictions imposed on uncertificated shares within two (2) months after the date set for demanding payment.
(b) A dissenter waives the dissenters right to demand payment under this section unless the dissenter notifies the corporation of the dissenters demand in writing under subsection (a) within one (1) month after the corporation made or offered payment for the dissenters shares.
<End of Appendix B.>
Appendix B | Page 5 |
APPENDIX C
November 21, 2013
Board of Directors
MidSouth Bank
One East College Street
Murfreesboro, TN 37133-7100
Members of the Board of Directors:
MidSouth Bank (MidSouth) and Franklin Financial Network, Inc. (Franklin) have entered into an Agreement and Plan of Merger dated November 21, 2013 (the Agreement) pursuant to which MidSouth will be merged with Franklin in a transaction (the Merger) in which each outstanding share of MidSouths common stock, par value $1.00 (the MidSouth Shares) shall be cancelled, shall cease to exist and shall no longer be outstanding and shall be converted into the right to receive 0.425926 shares of Franklins common stock, no par value (the Franklin Shares)( the Exchange Ratio). The other terms and conditions of the Merger are more fully set forth in the Agreement, and capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement.
You have requested our opinion as to the fairness, from a financial point of view, of the Exchange Ratio with respect to the MidSouth Shares.
In arriving at our opinion, we have, among other things:
1. | Reviewed the Agreement dated November 21, 2013; |
2. | Reviewed certain publicly-available financial and business information of MidSouth, Franklin and their affiliates which we deemed to be relevant; |
3. | Reviewed certain information, including financial forecasts, relating to the business, earnings, cash flow, assets, liabilities, liquidity and prospects of MidSouth and Franklin; |
4. | Reviewed materials detailing the Merger prepared by MidSouth, Franklin and their affiliates and by their legal and accounting advisors; |
5. | Conducted conversations with members of senior management and representatives of both MidSouth and Franklin regarding the matters described in clauses 1-4 above, as well as their respective businesses and prospects before and after giving effect to the Merger; |
6. | Compared certain financial metrics of MidSouth, Franklin and other selected depository institutions that we deemed to be relevant; |
7. | Compared certain historical and projected financial information for MidSouth and Franklin relative to the Exchange Ratio and their shareholders ownership in the combined company; |
November 21, 2013
Page 2
8. | Reviewed the valuation for the Franklin Shares and MidSouth Shares and compared them with those of certain publicly traded depository institutions that we deemed to be relevant; |
9. | Analyzed the imputed valuation of the Franklin Shares and the MidSouth Shares based on certain publicly traded depository institutions that we deemed to be relevant and the financial forecasts of both Franklin and MidSouth; |
10. | Analyzed the terms of the Merger and the Exchange Ratio relative to selected prior mergers and acquisitions involving a depository institution as the selling entity; |
11. | Analyzed the Exchange Ratio offered relative to MidSouths tangible book value, last twelve months earnings and core deposits as of September 30, 2013; |
12. | Analyzed the impact of the Merger on certain balance sheet, income statement and capital ratios of MidSouth and Franklin; |
13. | Analyzed the impact of the Merger on MidSouths and Franklins estimated stand-alone earnings per share and tangible book value per share for the projected fiscal years ending December 31, 2014, 2015, 2016, 2017 and 2018; |
14. | Reviewed the overall environment for depository institutions in the United States and Middle Tennessee; and |
15. | Conducted such other financial studies, analyses and investigations and took into account such other matters as we deemed appropriate for purposes of this opinion, including our assessment of general economic, market and monetary conditions. |
In preparing our opinion, we assumed and relied upon, without independent verification, the accuracy and completeness of the information provided to us by MidSouth, Franklin and their affiliates for the purposes of this opinion. In addition, where appropriate, we relied upon publicly available information, without independent verification, that we believe to be reliable, accurate, and complete; however, we cannot guarantee the reliability, accuracy, or completeness of any such publicly available information. We were not engaged to express, and are not expressing, any opinion with respect to any other transactions or alternative proposed transactions, if any, between MidSouth and Franklin. With respect to the financial forecasts supplied to us, we have assumed with your consent that they were reasonably prepared and reflect the best currently available estimates and judgments of MidSouth as to future operating and financial performance of MidSouth, Franklin and their affiliates. With respect to purchase accounting adjustments, cost savings and other synergies determined by senior management of MidSouth and Franklin, such managements confirmed that they reflected the best currently available estimates. In addition, we have assumed that the Agreement is a valid, binding and enforceable agreement upon the parties and their affiliates and will not be terminated or breached by either party. We have also assumed that there have been no material changes in the assets, liabilities, financial condition, results of operations, business or prospects of MidSouth, Franklin and their affiliates since either
November 21, 2013
Page 3
(i) the date of the last financial statements made available to us and (ii) the date of the Agreement, and that no legal, political, economic, regulatory or other developments have occurred or will occur that will adversely affect these entities. We did not make an independent evaluation of the assets or liabilities of MidSouth, Franklin or their affiliates, including, but not limited to, any derivative or off-balance sheet assets or liabilities. We have relied upon and assumed, without assuming any responsibility for independent verification, the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by us. We have assumed that all required governmental, regulatory, shareholder and third party approvals have or will be received in a timely fashion and without any conditions or requirements that could adversely affect the Merger.
Our opinion is necessarily based on economic, market, and other conditions as existed on, and could be evaluated as of, and on the information made available to us as of, the date hereof. Events and developments occurring after the date hereof could materially affect the assumptions used in preparing this opinion and we do not have any obligation to update, revise or reaffirm this opinion.
Sterne, Agee & Leach, Inc. (Sterne Agee) is acting as financial advisor to MidSouth in connection with the Merger and will receive fees from MidSouth for our services, a substantial portion of which are contingent upon the consummation of the Merger. Sterne Agee also will receive a fee in connection with the delivery of this opinion. In addition, MidSouth has agreed to reimburse our expenses and to indemnify us against certain liabilities arising out of our engagement. Other than our engagement by MidSouth in connection with the Merger, we have not provided investment banking services to MidSouth, Franklin or their affiliates over the past two years; however, we may do so in the future. In the ordinary course of our business as a broker-dealer, we may, from time to time, purchase securities from and sell securities to MidSouth, Franklin or their affiliates.
This opinion is for the use and benefit of the Board of Directors of MidSouth. This letter does not constitute a recommendation to any shareholder of MidSouth as to how such shareholder should vote at any meeting of shareholders called to consider and vote on the Merger. Our opinion is limited to the fairness, from a financial point of view to the holders of the MidSouth Shares of the Exchange Ratio and does not address the underlying business decision of MidSouth, or a recommendation whether or not, to engage in the Merger, or the relative merits of the Merger relative to any strategic alternative that may be available to MidSouth. In rendering this opinion, we express no view or opinion with respect to the fairness (financial or otherwise) of the amount or nature or any other aspect of any compensation payable to or to be received by any officers, directors, or employees of any of the parties to the Merger relative to the aggregate Merger Consideration. The issuance of this opinion has been approved by the Fairness Opinion Committee of Sterne Agee.
We are not expressing any opinion herein as to the prices at which the Franklin Shares will trade following the announcement or consummation of the Merger.
November 21, 2013
Page 4
Based on the foregoing and such other matters we have deemed relevant, it is our opinion, as of the date hereof, that the Exchange Ratio is fair from a financial point of view to the holders of the MidSouth Shares.
Very truly yours,
STERNE, AGEE & LEACH, INC.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers
The Tennessee Business Corporation Act (TBCA) allows a Tennessee corporations charter to contain a provision eliminating or limiting, with certain exceptions, the personal liability of a director to the corporation or its shareholders for monetary damages for breach of the directors fiduciary duty as a director. Under the TBCA, a Tennessee business corporation may not eliminate or limit director monetary liability for (i) breaches of the directors duty of loyalty to the corporation or its shareholders; (ii) acts or omissions not in good faith or involving intentional misconduct or a knowing violation of law; or (iii) unlawful distributions. This provision also may not limit a directors liability for violation of, or otherwise relieve a corporation or its directors from the necessity of complying with, federal or state securities laws, or affect the availability of non-monetary remedies such as injunctive relief or rescission. FFNs charter contains a provision stating that directors shall not be personally liable for monetary damage to the corporation or its shareholders for breach of fiduciary duty as a director, except to the extent required by the TBCA in effect from time to time.
The TBCA provides that a corporation may indemnify any of its directors, officers, employees and agents against liability incurred in connection with a proceeding if (a) such person acted in good faith; (b) in the case of conduct in an official capacity with the corporation, he reasonably believed such conduct was in the corporations best interests; (c) in all other cases, he reasonably believed that his conduct was at least not opposed to the best interests of the corporation; and (d) in connection with any criminal proceeding, such person had no reasonable cause to believe his conduct was unlawful. In actions brought by or in the right of the corporation, however, the TBCA provides that no indemnification may be made if the director or officer was adjudged to be liable to the corporation. The TBCA also provides that in connection with any proceeding charging improper personal benefit to an officer or director, no indemnification may be made if such officer or director is adjudged liable on the basis that such personal benefit was improperly received. In cases where the director or officer is wholly successful, on the merits or otherwise, in the defense of any proceeding instigated because of his or her status as a director or officer of a corporation, the TBCA mandates that the corporation indemnify the director or officer against reasonable expenses incurred in the proceeding. The TBCA provides that a court of competent jurisdiction, unless the corporations charter provides otherwise, upon application, may order that an officer or director be indemnified for reasonable expenses if, in consideration of all relevant circumstances, the court determines that such individual is fairly and reasonably entitled to indemnification, notwithstanding the fact that (a) such officer or director was adjudged liable to the corporation in a proceeding by or in the right of the corporation; (b) such officer or director was adjudged liable on the basis that personal benefit was improperly received by him; or (c) such officer or director breached his duty of care to the corporation.
Under FFNs Bylaws, any person, his heirs, executors, administrators, successors and assigns may be indemnified or reimbursed by FFN for expenses actually incurred in connection with any action, claim, suit, or proceeding to which he or they shall be made a party or potential party by reason of his being or having been a director or officer, or director of officer of another corporation in which the corporation at such time owned or may own shares of stock or of which it was or may be a creditor, which he served at the request of FFNs board of directors; provided, however, that no person shall be so indemnified in relation to any matter in such action, claim, suit, or proceeding as to which he shall finally be adjudged to have been liable for his own negligence or misconduct in the performance of his duties to FFN.
Under FFNs Bylaws, the foregoing right of indemnification shall not be exclusive of other rights to which such person, his heirs, executors, administrators, successors or assigns may be entitled under any law, bylaw, agreement, vote of shareholders or otherwise.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of FFN pursuant to the Bylaws, or otherwise, FFN has been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
FFN carries standard directors and officers liability insurance covering its directors and officers.
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Item 21. Exhibits and Financial Statement Schedules
Exhibit No. |
Description | |
2.1 | Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013 between Franklin Financial Network, Inc. and MidSouth Bank (incorporated herein by reference to Appendix A to the joint proxy statement/prospectus that is Part I of this registration statement) (schedules and exhibits to which have been omitted pursuant to Items 601(b)(2) of Regulations S-K) | |
3.1 | Charter of Franklin Financial Network, Inc. | |
3.2 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated November 15, 2007 | |
3.3 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated June 17, 2010 | |
3.4 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated September 27, 2011 | |
3.5 | Articles of Amendment to the Charter Designating Senior Non-Cumulative Perpetual Preferred Stock, Series A of Franklin Financial Network, Inc. dated September 27, 2011 | |
3.6 | Bylaws of Franklin Financial Network, Inc. as amended | |
4.1 | Specimen Common Stock Certificate of Franklin Financial Network | |
4.2 | See Exhibits 3.1 and 3.2 for provisions of the Charter and Bylaws defining rights of holders of the Registrants Common Stock | |
5.1 | Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding the validity of the securities being registered | |
8.1 | Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding material federal income tax consequences relating to the merger | |
10.1 | Retail Lease Agreement dated as of December 21, 2011 by and between Westhaven Town Center Fund I, LLC and Franklin Synergy Bank | |
10.2 | Triple Net Office Lease Agreement dated as of June 12, 2012 by and between Berry Farms Real Estate Partners, LLC and Franklin Synergy Bank | |
10.3 | Lease Agreement dated as of December 12, 2012 by and between First Farmers and Merchants Bank and Franklin Synergy Bank | |
10.4 | Office Lease Agreement dated as of May 11, 2007 by and between PCC Investments II, LLC and Franklin Financial Network, Inc. (Aspen Brook Village Suites 201, 202 and 203) | |
10.5 | Triple Net Office Lease Agreement dated as of May 4, 2010 by and between Columbia Avenue Partners, LLC and Franklin Synergy Bank | |
10.6 | Lease dated as of May 21, 2012 by and between CHHM Properties and Franklin Synergy Bank | |
10.7 | Amendment No. 4 to Lease Agreement dated June 19, 2013 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.8 | Amendment No. 3 to Lease Agreement dated March 11, 2012 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.9 | Amendment No. 2 to Lease Agreement dated May 1, 2010 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.10 | Amendment No. 1 to Lease Agreement dated October 20, 2008 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. |
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10.11 | Lease Agreement dated October 17, 2005 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.12 | Lease Agreement effective October 8, 2008 by and between UCM/ProVenture-Synergy Business Park, LLC and Franklin Synergy Bank | |
10.13 | Lease Amendment No. 1 dated as of June 11, 2013 by and between Mooreland Investors, LP, successor in interest to UCM/ProVenture-Synergy Business Park, LLC, and Franklin Synergy Bank | |
10.14 | Office Lease Agreement dated as of May 11, 2007 by and between PCC Investments II, LLC and Franklin Financial Network, Inc. (Aspen Brook Village Suites 106, 107 and 108) | |
10.15 | Lease dated as of April 20, 2010 by and between Edwin B. Raskin Company, as agent for SIG, LLC, and Franklin Synergy Bank | |
10.16 | Form of Franklin Financial Network, Inc.s Organizers Warrant Agreement | |
10.17 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Richard E. Herrington* | |
10.18 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Kevin A. Herrington* | |
10.19 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally E. Bowers* | |
10.20 | Employment Agreement dated as of January 29, 2014 by and Franklin Synergy Bank and Ashley P. Hill, III* | |
10.21 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and J. Myers Jones, III* | |
10.22 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and David J. McDaniel* | |
10.23 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally P. Kimble* | |
10.24 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Richard E. Herrington* | |
10.25 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Kevin A. Herrington* | |
10.26 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally E. Bowers* | |
10.27 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and Franklin Synergy Bank and Ashley P. Hill, III* | |
10.28 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and J. Myers Jones, III* |
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10.29 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and David J. McDaniel* | |
10.30 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally P. Kimble* | |
10.31 | Employment Agreement dated as of May 29, 2008 by and between Franklin Synergy Bank and Constance E. Edwards* | |
10.32 | Employment Agreement dated as of September 25, 2008 by and between Franklin Synergy Bank and Joseph H. Bowman* | |
10.33 | Employment Agreement dated as of September 25, 2008 by and between Franklin Synergy Bank and Jere D. Pewitt* | |
10.34 | Form of Lee M. Moss Employment Agreement* | |
10.35 | Form of Lee M. Moss Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.36 | Form of Lee M. Moss Retention Agreement* | |
10.37 | Form of Kevin D. Busbey Employment Agreement * | |
10.38 | Form of Kevin D. Busbey Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.39 | Form of Kevin D. Busbey Retention Agreement* | |
10.40 | Form of Dallas G. Caudle Employment Agreement* | |
10.41 | Form of Dallas G. Caudle Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.42 | Form of Dallas G. Caudle Retention Agreement* | |
10.43 | Form of D. Edwin Jernigan, Jr. Retention Agreement* | |
10.44 | Form of D. Edwin Jernigan, Jr. Stock Option Award Agreement* | |
10.45 | Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan* | |
10.46 | Form of Franklin Financial Network, Inc.s Stock Option Award* | |
10.47 | Form of Franklin Financial Network, Inc.s Restricted Stock Award* | |
10.48 | Form of Split Dollar Life Insurance Agreement* | |
21.1 | Subsidiaries of the Registrant | |
23.1 | Consent of Crowe Horwath LLP (for Franklin Financial Network, Inc.) | |
23.2 | Consent of Maggart & Associates, P.C. (for MidSouth Bank) | |
23.3 | Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included as part of Exhibit 5.1) |
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23.4 | Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included as part of Exhibit 8.1) | |
24.1 | Power of Attorney (included on Page II-7 to this registration statement) | |
99.1 | Form of Franklin Financial Network, Inc. Proxy Card | |
99.2 | Form of MidSouth Bank Proxy Card for Holders of Common Stock | |
99.3 | Form of MidSouth Bank Proxy Card for Holders of Preferred Stock | |
99.4 | Opinion of Sterne, Agee & Leach, Inc. (attached as Appendix C to the joint proxy statement/prospectus which is part of this registration statement) | |
99.5 | Consent of Sterne, Agee & Leach, Inc. |
* | Management compensatory plan or arrangement |
Item 22. Undertakings
The undersigned registrant hereby undertakes:
(A)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(B) The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus which is a part of this registration statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
(C) The registrant undertakes that every prospectus (i) that is filed pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933 and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an
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amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide -offering thereof.
(D) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions hereof, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(E) The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
(F) The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, hereunto duly authorized, in the City of Franklin, State of Tennessee on February 14, 2014.
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: |
/s/ Richard E. Herrington |
|
Name: | Richard E. Herrington | |
Title: | President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the persons whose signature appears below appoints and constitutes Richard E. Herrington and Sally P. Kimble, or either of them, his or her true and lawful attorney-in-fact and agent, acting alone, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to execute any and all amendments (including post-effective amendments) to the within registration statement (as well as any registration statement for the same offering covered by this registration statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, together with all exhibits thereto and all other documents in connection therewith, with the Securities and Exchange Commission and such other agencies, offices and persons as may be required by applicable law, granting unto said attorneys-in-fact and agents, or either of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date |
||
/S/ Richard E. Herrington Richard E. Herrington |
Chairman, President & CEO (Principal Executive Officer) | February 14, 2014 | ||
/S/ Sally P. Kimble Sally P. Kimble |
Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | February 14, 2014 | ||
/S/ Henry W. Brockman, Jr. Henry W. Brockman, Jr. |
Director | February 14, 2014 | ||
/S/ James W. Cross, IV James W. Cross, IV |
Director | February 14, 2014 | ||
/S/ David H. Kemp David H. Kemp |
Director | February 14, 2014 |
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Signature |
Title |
Date |
||
/S/ Paul M. Pratt, Jr. Paul M. Pratt, Jr. |
Director | February 14, 2014 | ||
/S/ Melody Smiley Melody Smiley |
Director | February 14, 2014 | ||
/S/ Pamela J. Stephens Pamela J. Stephens |
Director | February 14, 2014 |
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Exhibit Index
Exhibit No. |
Description | |
2.1 | Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013 between Franklin Financial Network, Inc. and MidSouth Bank (incorporated herein by reference to Appendix A to the joint proxy statement/prospectus that is Part I of this registration statement) (schedules and exhibits to which have been omitted pursuant to Items 601(b)(2) of Regulations S-K) | |
3.1 | Charter of Franklin Financial Network, Inc. | |
3.2 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated November 15, 2007 | |
3.3 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated June 17, 2010 | |
3.4 | Articles of Amendment to the Charter of Franklin Financial Network, Inc. dated September 27, 2011 | |
3.5 | Articles of Amendment to the Charter Designating Senior Non-Cumulative Perpetual Preferred Stock, Series A of Franklin Financial Network, Inc. dated September 27, 2011 | |
3.6 | Bylaws of Franklin Financial Network, Inc. as amended | |
4.1 | Specimen Common Stock Certificate of Franklin Financial Network | |
4.2 | See Exhibits 3.1 and 3.2 for provisions of the Charter and Bylaws defining rights of holders of the Registrants Common Stock | |
5.1 | Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding the validity of the securities being registered | |
8.1 | Opinion of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC regarding material federal income tax consequences relating to the merger | |
10.1 | Retail Lease Agreement dated as of December 21, 2011 by and between Westhaven Town Center Fund I, LLC and Franklin Synergy Bank | |
10.2 | Triple Net Office Lease Agreement dated as of June 12, 2012 by and between Berry Farms Real Estate Partners, LLC and Franklin Synergy Bank | |
10.3 | Lease Agreement dated as of December 12, 2012 by and between First Farmers and Merchants Bank and Franklin Synergy Bank | |
10.4 | Office Lease Agreement dated as of May 11, 2007 by and between PCC Investments II, LLC and Franklin Financial Network, Inc. (Aspen Brook Village Suites 201, 202 and 203) | |
10.5 | Triple Net Office Lease Agreement dated as of May 4, 2010 by and between Columbia Avenue Partners, LLC and Franklin Synergy Bank | |
10.6 | Lease dated as of May 21, 2012 by and between CHHM Properties and Franklin Synergy Bank | |
10.7 | Amendment No. 4 to Lease Agreement dated June 19, 2013 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.8 | Amendment No. 3 to Lease Agreement dated March 11, 2012 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.9 | Amendment No. 2 to Lease Agreement dated May 1, 2010 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.10 | Amendment No. 1 to Lease Agreement dated October 20, 2008 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. |
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10.11 | Lease Agreement dated October 17, 2005 by and between Cherokee Equities Corporation and Banc Compliance Group, Inc. | |
10.12 | Lease Agreement effective October 8, 2008 by and between UCM/ProVenture-Synergy Business Park, LLC and Franklin Synergy Bank | |
10.13 | Lease Amendment No. 1 dated as of June 11, 2013 by and between Mooreland Investors, LP, successor in interest to UCM/ProVenture-Synergy Business Park, LLC, and Franklin Synergy Bank | |
10.14 | Office Lease Agreement dated as of May 11, 2007 by and between PCC Investments II, LLC and Franklin Financial Network, Inc. (Aspen Brook Village Suites 106, 107 and 108) | |
10.15 | Lease dated as of April 20, 2010 by and between Edwin B. Raskin Company, as agent for SIG, LLC, and Franklin Synergy Bank | |
10.16 | Form of Franklin Financial Network, Inc.s Organizers Warrant Agreement | |
10.17 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Richard E. Herrington* | |
10.18 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Kevin A. Herrington* | |
10.19 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally E. Bowers* | |
10.20 | Employment Agreement dated as of January 29, 2014 by and Franklin Synergy Bank and Ashley P. Hill, III* | |
10.21 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and J. Myers Jones, III* | |
10.22 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and David J. McDaniel* | |
10.23 | Employment Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally P. Kimble* | |
10.24 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Richard E. Herrington* | |
10.25 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Kevin A. Herrington* | |
10.26 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally E. Bowers* | |
10.27 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and Franklin Synergy Bank and Ashley P. Hill, III* | |
10.28 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and J. Myers Jones, III* |
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10.29 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and David J. McDaniel* | |
10.30 | Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement dated as of January 29, 2014 by and between Franklin Synergy Bank and Sally P. Kimble* | |
10.31 | Employment Agreement dated as of May 29, 2008 by and between Franklin Synergy Bank and Constance E. Edwards* | |
10.32 | Employment Agreement dated as of September 25, 2008 by and between Franklin Synergy Bank and Joseph H. Bowman* | |
10.33 | Employment Agreement dated as of September 25, 2008 by and between Franklin Synergy Bank and Jere D. Pewitt* | |
10.34 | Form of Lee M. Moss Employment Agreement* | |
10.35 | Form of Lee M. Moss Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.36 | Form of Lee M. Moss Retention Agreement* | |
10.37 | Form of Kevin D. Busbey Employment Agreement * | |
10.38 | Form of Kevin D. Busbey Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.39 | Form of Kevin D. Busbey Retention Agreement* | |
10.40 | Form of Dallas G. Caudle Employment Agreement* | |
10.41 | Form of Dallas G. Caudle Confidentiality, Non-Competition Agreement and Non-Solicitation Agreement* | |
10.42 | Form of Dallas G. Caudle Retention Agreement* | |
10.43 | Form of D. Edwin Jernigan, Jr. Retention Agreement* | |
10.44 | Form of D. Edwin Jernigan, Jr. Stock Option Award Agreement* | |
10.45 | Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan* | |
10.46 | Form of Franklin Financial Network, Inc.s Stock Option Award* | |
10.47 | Form of Franklin Financial Network, Inc.s Restricted Stock Award* | |
10.48 | Form of Split Dollar Life Insurance Agreement* | |
21.1 | Subsidiaries of the Registrant | |
23.1 | Consent of Crowe Horwath LLP (for Franklin Financial Network, Inc.) | |
23.2 | Consent of Maggart & Associates, P.C. (for MidSouth Bank) | |
23.3 | Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included as part of Exhibit 5.1) |
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23.4 | Consent of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC (included as part of Exhibit 8.1) | |
24.1 | Power of Attorney (included on Page II-7 to this registration statement) | |
99.1 | Form of Franklin Financial Network, Inc. Proxy Card | |
99.2 | Form of MidSouth Bank Proxy Card for Holders of Common Stock | |
99.3 | Form of MidSouth Bank Proxy Card for Holders of Preferred Stock | |
99.4 | Opinion of Sterne, Agee & Leach, Inc. (attached as Appendix C to the joint proxy statement/prospectus which is part of this registration statement) | |
99.5 | Consent of Sterne, Agee & Leach, Inc. |
* | Management compensatory plan or arrangement |
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EXHIBIT 3.1
CHARTER
OF
FRANKLIN FINANCIAL NETWORK, INC.
The undersigned person, having capacity to contract and act as the Incorporator of a corporation under the Tennessee Business Corporation Act, adopts the following Charter for such Corporation:
1. Name . The name of the Corporation is:
FRANKLIN FINANCIAL NETWORK, INC.
2. Stock . The maximum number of shares which the Corporation shall have authority to issue is ten million (10,000,000) shares of voting common stock having no par value, that have unlimited voting rights and that are entitled to receive the net assets of the corporation upon dissolution. There shall be no preemptive rights for holders of common stock.
3. Registered Agent . The Corporations initial registered office is 903 Murfreesboro Road, Franklin, Tennessee 37064, which is located in Williamson County, and its initial registered agent at that office is Paul M. Pratt, Jr.
4. Incorporator . The Incorporator of the Corporation is:
Paul M. Pratt, Jr.
903 Murfreesboro Road
Franklin, Tennessee 37064
5. Principal Office . The principal office of the Corporation is:
2000 Mallory Lane, Suite 130-120 Franklin, Tennessee 37067-9231
6. Profit . The Corporation is for profit.
7. Purpose . The purpose or purposes for which the Corporation is organized are:
To acquire by purchase, lease or otherwise, and to hold, operate, manage, develop, encumber and otherwise deal with any and all kinds of real and personal property and to engage in any business not prohibited by law under the laws of Tennessee; and to do any and all things necessary or incidental in the operation of such business or businesses.
8. Board of Directors . The property, affairs and business of the corporation shall be managed by a Board of Directors. The number of directors shall be as specified in the Bylaws of the corporation. The Board of Directors may change the number of authorized directors from time to time by amending the bylaws pursuant to a resolution adopted by a majority vote of the entire Board of Directors. No decrease in the number of directors shall shorten the term of any incumbent directors.
(a) Notice of Nominations . Directors shall be elected at the annual shareholders meeting, and nominations for directors must be mailed to and received by the secretary of the Corporation at the principal office of the Corporation not less than one hundred twenty (120) days prior to the meeting at which directors are to be elected.
(b) Removal . Any or all of the directors of the Corporation may be removed for cause by a vote of a majority of the entire Board of Directors. Cause shall include, but not be limited to, a director willfully or without reasonable cause being absent from any regular or special meeting for the purpose of obstructing or hindering the business of the Corporation, final conviction of a felony, declaration of unsound mind by court order, adjudication of bankruptcy or conduct otherwise prejudicial to the interest of the Corporation.
(c) Vacancies . Newly created directorships resulting from an increase in the number of authorized directors and vacancies occurring in the Board of Directors for any reason, including, without limitation, removal from office by vote of the directors as herein provided, shall be filled only by a vote of the majority of the directors then in office. Any director so elected shall hold office until the annual meeting of shareholders.
(d) Powers . In furtherance and not in limitation of the powers conferred by the laws of the State of Tennessee, the Board of Directors is expressly authorized and empowered:
i) To make, alter, amend and repeal the Bylaws, subject to the power of the shareholders to alter or repeal the Bylaws made by the Board of Directors;
ii) To authorize and issue, without shareholder consent, obligations of the Corporation, secured and unsecured, under such terms and conditions as the Board in its sole discretion may determine, and to pledge or mortgage as security therefor real or personal property of the Corporation, including after acquired property;
iii) To determine whether any and, if so, what part of the capital of the Corporation in compliance with applicable law shall be paid in dividends to the shareholders, and to direct and determine other use and disposition of any such capital;
iv) To establish bonus, profit sharing, stock option, or other types of incentive compensation plans for the employees, including officers and directors of the Corporation; to fix the amount of profits to be shared or distributed; and to determine the persons who participate in any such plans and the amount of their respective participations;
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v) To designate by resolution or resolutions passed by a majority of the whole Board one or more committees, each consisting of two (2) or more directors, which, to the extent permitted by law and authorized by the resolution or the Bylaws, shall have and may exercise the powers of the Board;
vi) To elect such officers as the Board may deem necessary, who shall have such authority and perform such duties as may be prescribed from time to time by the Board;
vii) To provide for the reasonable compensation of its own members in the Bylaws and to fix the terms and conditions upon which such compensation will be paid;
viii) In addition to the powers and authority hereinbefore or by statute expressly conferred upon it, the Board of Directors may exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject nevertheless to the provisions of the laws of the State of Tennessee, this Charter, and the Bylaws of the Corporation.
9. Amendment of Quorum or Voting Requirement. The shareholders may adopt or amend a bylaw that fixes a greater quorum or voting requirement for shareholders (or voting groups of shareholders) than is required by law.
10. Liability
(a) To the fullest extent that the law of the State of Tennessee, as it exists on the date hereof or as it may hereafter be amended, permits the limitation or elimination of the liability of directors, no director of the Corporation shall be personally liable to the Corporation or its shareholders for monetary damages for breach of fiduciary duty as a director.
(b) The Corporation shall have the power to indemnify any director, officer, employee, agent of the Corporation, or any other person who is serving at the request of the Corporation in any such capacity with another Corporation, partnership, joint venture, trust, or other enterprises to the fullest extent permitted by the law of the State of Tennessee, as it exists on the date hereof or as it may hereafter be amended, and any such indemnification may continue as to any person who has ceased to be a director, officer, employee, or agent and may inure to the benefit of the heirs, executors, and administrators of such a person.
(c) If the Tennessee Business Corporation Act is amended after approval of this Article to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Tennessee Business Corporation Act, as so amended.
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11. Powers . This Corporation shall have all the powers granted to corporations under the Tennessee Business Corporation Act.
12. Amendment of Charter. The provisions of this Charter may be amended, altered, or repealed from time to time to the extent, and in the manner prescribed by the laws of the State of Tennessee and the provisions of this charter, and any additional provisions so authorized may be added. All rights herein conferred on the directors, officers, and shareholders are granted subject to this reservation.
13. Fiscal Year . The Corporations fiscal year shall end on December 31 of each year until changed by the Board of Directors or Bylaws.
Dated: April 5, 2007
/s/ Paul M. Pratt, Jr. | ||
Paul M. Pratt, Jr., Incorporator |
This Instrument Prepared By:
Baker, Donelson, Bearman & Caldwell
211 Commerce Street, Suite 100
Nashville, Tennessee 37201
(615) 726-5600
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EXHIBIT 3.2
ARTICLES OF AMENDMENT TO THE CHARTER
OF
FRANKLIN FINANCIAL NETWORK, INC.
(Control Number 0545877)
Pursuant to the provisions of Section 48-20-101 of the Tennessee Business Corporation Act, the undersigned corporation adopts the following articles of amendment to its charter:
1. Name. The name of the corporation is:
FRANKLIN FINANCIAL NETWORK, INC.
2. The amendment adopted is that Articles 3 and 4 are replaced in their entirety with the following:
3. Registered Office and Agent. The corporations registered office is 3301 Aspen Grove Drive, Suite 200, Franklin, Tennessee 37067, which is located in Williamson County, and its registered agent at that office is Richard E. Herrington.
4. Principal Office. The address of the principal office of the corporation shall be 3301 Aspen Grove Drive, Suite 200, Franklin, Tennessee 37067.
3. The Corporation is a for-profit corporation.
4. The amendment was adopted by the Board of Directors on November 15, 2007.
5. The amendment will become effective upon filing of this amendment with the Secretary of State.
Dated this 15th day of November, 2007.
FRANKLIN FINANCIAL NETWORK, INC.: | ||
By: | /s/ Richard E. Herrington | |
Richard E. Herrington, President/CEO |
SECRETARYS CERTIFICATE
I, being the Secretary of Franklin Financial Network, Inc., a Tennessee corporation (the Corporation), hereby certify that the following resolution was duly adopted by the Board of Directors on November 15, 2007, and that such resolution has not been repealed or revoked, but is currently in full force and effect.
RESOLVED , that the Charter of the Corporation be amended to change the principal address to 3301 Aspen Grove Drive, Suite 200, Franklin, Tennessee 37067, and change the registered agent of the Bank to Richard E. Herrington at such address.
IN WITNESS WHEREOF, I have affixed my signature as Secretary of the Corporation this 15th day of November, 2007.
/s/ Mandy M. Garland |
Mandy M. Garland, Secretary |
Exhibit 3.3
ARTICLES OF AMENDMENT TO THE CHARTER
OF
FRANKLIN FINANCIAL NETWORK, INC.
(Control Number 0545877)
Pursuant to the provisions of Section 48-20-101 of the Tennessee Business Corporation Act, the undersigned corporation adopts the following articles of amendment to its charter:
1. | Name . The name of the corporation is: |
FRANKLIN FINANCIAL NETWORK, INC.
2. | The amendment adopted is that Articles 3 and 4 are replaced in their entirety with the following: |
3. Registered Office and Agent . The corporations registered office is 722 Columbia Avenue, Franklin, Tennessee 37064, which is located in Williamson County, and its registered agent at that office is Richard E. Herrington.
4. Principal Office . The address of the principal office of the corporation shall be 722 Columbia Avenue, Franklin, Tennessee 37064.
3. | The Corporation is a for-profit corporation. |
4. | The amendment was adopted by the Board of Directors on June 17, 2010. |
5. | The amendment will become effective upon filing of this amendment with the Secretary of State. |
Dated this 17th day of June, 2010.
FRANKLIN FINANCIAL NETWORK, INC.: | ||
By: | /s/ Richard E. Herrington | |
Richard E. Herrington, President/CEO |
EXHIBIT 3.4
ARTICLES OF AMENDMENT TO THE CHARTER
OF
FRANKLIN FINANCIAL NETWORK, INC.
(Control Number 0545877)
Pursuant to the provisions of Section 48-20-101 of the Tennessee Business Corporation Act, the undersigned corporation adopts the following articles of amendment to its charter:
1. Name. The name of the corporation is:
FRANKLIN FINANCIAL NETWORK, INC.
2. The amendment adopted is that Article 2 is replaced in its entirety with the following:
2. (a) Common Stock . The authorized amount of common voting stock of the corporation shall be ten million (10,000,000) shares of common stock, no par value, that have unlimited voting rights and that are entitled to receive the net assets of the corporation upon dissolution. There shall be no preemptive rights for holders of common stock.
(b) Preferred Stock . The total number of shares of Preferred Stock which the corporation shall have the authority to issue is One Million (1,000,000) shares, having no designated par value. The Board of Directors is authorized to issue Preferred Stock from time to time in one or more classes or series and to provide for the designation, preferences, limitations and relative rights (within the limits set forth in the Tennessee Business Corporation Act) of the shares of each class or series by the adoption Articles of Amendment to the Articles of Incorporation of the corporation setting forth:
(i) the maximum number of shares in the class or series and the designation of the class or series, which designation shall distinguish the shares thereof from the shares of any other class or series;
(ii) whether shares of the class or series are redeemable or convertible (A) at the option of the corporation, a shareholder or another person or upon the occurrence of a designated event, (B) for cash, indebtedness, securities or other property and (C) in a designated amount or in an amount determined in accordance with a designated formula or by reference to extrinsic data or events;
(iii) any right of holders of shares of the class or series to distributions, calculated in any manner, including the rate or rates of dividends, and whether dividends shall be cumulative, non-cumulative or partially cumulative;
(iv) the amount payable upon the shares of the class or series in the event of voluntary or involuntary liquidation, dissolution or winding up of the affairs of the corporation;
(v) any preference of the shares of the class or series over the shares of any other class or series or class with respect to distributions, including dividends, and with respect to distributions upon the liquidation, dissolution or winding up of the affairs of the corporation; and
(vi) any other preferences, limitations or specified rights (including a right that no transaction of a specified nature shall be consummated while any shares of such class or series remain outstanding except upon the assent of all or a specified portion of such shares) now or hereafter permitted by the laws of the State of Tennessee and not inconsistent with the provisions of this Article.
All shares of a series shall have preferences, limitations, and relative rights identical with those of other shares of the same series and, except to the extent otherwise provided in the description of the series, of those of other series of the same class. Before the issuance of any shares of a class or series, Articles of Amendment establishing such class or series shall be filed with and made effective by the Secretary of State of Tennessee, as required by law.
3. The corporation is a for-profit corporation.
4. The amendment was duly adopted at a meeting of the shareholders on April 21, 2011.
5. The amendment will become effective upon filing of this amendment with the Secretary of State.
Dated this 27 day of September, 2011.
FRANKLIN FINANCIAL NETWORK, INC.: | ||
By: | /s/ Richard E. Herrington | |
Richard E. Herrington, President/CEO |
SS-4421 (Rev. 10/01) RDA | Filing Fee: $20.00 | RDA 1678 |
SECRETARYS CERTIFICATE
I, being the Secretary of Franklin Synergy Bank, a Tennessee banking corporation (the Corporation), hereby certify that the following resolution was duly adopted by the Board of Directors on March 17, 2011, and that such resolution has not been repealed or revoked, but is currently in full force and effect.
RESOLVED , that the Charter of the Corporation be amended to add a class of blank check preferred stock as described in the proposed Amendment to the Charter presented to this meeting.
IN WITNESS WHEREOF, I have affixed my signature as Secretary of the Corporation this 27th day of September, 2011.
/s/ Mandy M. Garland, Secretary |
Mandy M. Garland, Secretary |
EXHIBIT 3.5
ARTICLES OF AMENDMENT TO THE CHARTER
DESIGNATING SENIOR NON-CUMULATIVE PERPETUAL PREFERRED
STOCK, SERIES A
OF
FRANKLIN FINANCIAL NETWORK, INC.
(Control No. 0545877)
Pursuant to the provisions of Sections 48-20-101, 48-20-102, 48-20-106, and 48-16-102 of Tennessee Business Corporation Act, the undersigned Corporation adopts the following Articles of Amendment to its charter:
1. The name of the Corporation is Franklin Financial Network, Inc.
2. The following resolutions, establishing and designating a series of preferred shares and fixing and determining the relative rights and preferences thereof, was duly adopted by the Board of Directors of Franklin Financial Network, Inc. (the Corporation or Company) at a meeting on September 26, 2011:
NOW, THEREFORE, BE IT RESOLVED , that the Board of Directors authorizes the officers of the Corporation to participate in the SBLF in the amount of up to $10,000,000 and to execute with The Secretary of the Treasury the standard form Securities Purchase Agreement, as well as related documents, and then designate and issue pursuant thereto a series of preferred stock to be called Senior Non-Cumulative Perpetual Preferred Stock, Series A, as further set forth in the Articles of Amendment to the Charter attached to these resolutions as Exhibit A, and including the Certificate of Designation and Standard Provisions set forth therein as Schedule A, which can be issued by a vote of the Board of Directors without shareholder approval from time to time in one or more series.
Pursuant to the powers expressly delegated, or to be delegated, to the Board of Directors by Article 2 of the Charter of the Corporation, as amended, and pursuant to Section 48-16-102 Tennessee Business Corporation Act, the Board of Directors of the Corporation hereby amends the Charter of the Corporation to add a new Section 2(a)(4)(iv) that establishes and designates the Senior Non-Cumulative Perpetual Preferred Stock, Series A, without par value, and fixes and determines as set forth herein the relative rights and preferences thereof as set forth in the Certificate of Designation and Standard Provisions set forth therein as Schedule A.
3. The Corporation is a for-profit corporation.
SBLF Participant No. 0422
4. The amendment was adopted on September 26, 2011, by the Board of Directors. No shareholder approval was required pursuant to Article 2 of the Charter of the Corporation, as amended, and pursuant to Section 48-16-102 of the Tennessee Business Corporation Act.
5. The amendment will be effective upon its filing with the Secretary of State.
Date: September 26, 2011.
Franklin Financial Network, Inc. | ||
By: | /s/ Richard E. Herrington | |
Richard E. Herrington, President |
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EXHIBIT A
Certificate of Designation
(See attached)
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CERTIFICATE OF DESIGNATION
OF
SENIOR NON-CUMULATIVE PERPETUAL PREFERRED STOCK, SERIES A
OF
FRANKLIN FINANCIAL NETWORK, INC.
Franklin Financial Network, Inc., a corporation organized and existing under the laws of Tennessee (the Issuer ), in accordance with the provisions of Sections 48-20-101, 48-20-102, 48-20-106, and 48-16-102 of Tennessee Business Corporation Act thereof, does hereby certify:
The board of directors of the Issuer (the Board of Directors ) or an applicable committee of the Board of Directors, in accordance with the charter and bylaws of the Issuer and applicable law, adopted the following resolution on September 26, 2011 creating a series of 10,000 shares of Preferred Stock of the Issuer designated as Senior Non-Cumulative Perpetual Preferred Stock, Series A .
RESOLVED , that pursuant to the provisions of the charter and the bylaws of the Issuer and applicable law, a series of Preferred Stock, without par value, of the Issuer be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers, preferences and relative, participating, optional or other rights, and the qualifications, limitations and restrictions thereof, of the shares of such series, are as follows:
Part 1. Designation and Number of Shares . There is hereby created out of the authorized and unissued shares of preferred stock of the Issuer a series of preferred stock designated as the Senior Non-Cumulative Perpetual Preferred Stock, Series A (the Designated Preferred Stock ). The authorized number of shares of Designated Preferred Stock shall be 10,000.
Part 2. Standard Provisions . The Standard Provisions contained in Schedule A attached hereto are incorporated herein by reference in their entirety and shall be deemed to be a part of this Certificate of Designation to the same extent as if such provisions had been set forth in full herein.
Part 3. Definitions . The following terms are used in this Certificate of Designation (including the Standard Provisions in Schedule A hereto) as defined below:
(a) Common Stock means the common stock, par value $1.00 per share, of the Issuer.
(b) Definitive Agreement means that certain Securities Purchase Agreement by and between Issuer and Treasury, dated as of the Signing Date.
(c) Junior Stock means the Common Stock, and any other class or series of stock of the Issuer the terms of which expressly provide that it ranks junior to Designated Preferred Stock as to dividend and redemption rights and/or as to rights on liquidation, dissolution or winding up of the Issuer.
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(d) Liquidation Amount means $1,000 per share of Designated Preferred Stock.
(e) Minimum Amount means (i) the amount equal to twenty-five percent (25%) of the aggregate Liquidation Amount of Designated Preferred Stock issued on the Original Issue Date or (ii) all of the outstanding Designated Preferred Stock, if the aggregate liquidation preference of the outstanding Designated Preferred Stock is less than the amount set forth in the preceding clause (i).
(f) Parity Stock means any class or series of stock of the Issuer (other than Designated Preferred Stock) the terms of which do not expressly provide that such class or series will rank senior or junior to Designated Preferred Stock as to dividend rights and/or as to rights on liquidation, dissolution or winding up of the Issuer (in each case without regard to whether dividends accrue cumulatively or non-cumulatively).
(g) Signing Date means September 27, 2011.
(h) Treasury means the United States Department of the Treasury and any successor in interest thereto.
Part 4. Certain Voting Matters . Holders of shares of Designated Preferred Stock will be entitled to one vote for each such share on any matter on which holders of Designated Preferred Stock are entitled to vote, including any action by written consent.
[Remainder of Page Intentionally Left Blank]
SBLF Participant No. 0422 | -5- |
IN WITNESS WHEREOF, FRANKLIN FINANCIAL NETWORK, INC . has caused this Certificate of Designation to be signed by Richard E. Herrington, its President, this 26th day of September.
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: | /s/ Richard E. Herrington | |
Name: Richard E. Herrington Title: President |
SBLF Participant No. 0422 | 6 |
Schedule A
STANDARD PROVISIONS
Section 1. General Matters . Each share of Designated Preferred Stock shall be identical in all respects to every other share of Designated Preferred Stock. The Designated Preferred Stock shall be perpetual, subject to the provisions of Section 5 of these Standard Provisions that form a part of the Certificate of Designation. The Designated Preferred Stock shall rank equally with Parity Stock and shall rank senior to Junior Stock with respect to the payment of dividends and the distribution of assets in the event of any dissolution, liquidation or winding up of the Issuer, as set forth below.
Section 2. Standard Definitions . As used herein with respect to Designated Preferred Stock:
(a) Acquiror , in any Holding Company Transaction, means the surviving or resulting entity or its ultimate parent in the case of a merger or consolidation or the transferee in the case of a sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of the consolidated assets of the Issuer and its subsidiaries, taken as a whole.
(b) Affiliate means, with respect to any person, any person directly or indirectly controlling, controlled by or under common control with, such other person. For purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with ) when used with respect to any person, means the possession, directly or indirectly through one or more intermediaries, of the power to cause the direction of management and/or policies of such person, whether through the ownership of voting securities by contract or otherwise.
(c) Applicable Dividend Rate has the meaning set forth in Section 3(a).
(d) Appropriate Federal Banking Agency means the appropriate Federal banking agency with respect to the Issuer as defined in Section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. Section 1813(q)), or any successor provision.
(e) Bank Holding Company means a company registered as such with the Board of Governors of the Federal Reserve System pursuant to 12 U.S.C. §1842 and the regulations of the Board of Governors of the Federal Reserve System thereunder.
(f) Baseline means the Initial Small Business Lending Baseline set forth on the Initial Supplemental Report (as defined in the Definitive Agreement), subject to adjustment pursuant to Section 3(a).
(g) Business Combination means a merger, consolidation, statutory share exchange or similar transaction that requires the approval of the Issuers stockholders.
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(h) Business Day means any day except Saturday, Sunday and any day on which banking institutions in the State of New York or the District of Columbia generally are authorized or required by law or other governmental actions to close.
(i) Bylaws means the bylaws of the Issuer, as they may be amended from time to time.
(j) Call Report has the meaning set forth in the Definitive Agreement.
(k) Certificate of Designation means the Certificate of Designation or comparable instrument relating to the Designated Preferred Stock, of which these Standard Provisions form a part, as it may be amended from time to time.
(l) Charge-Offs means the net amount of loans charged off by the Issuer or, if the Issuer is a Bank Holding Company or a Savings and Loan Holding Company, by the IDI Subsidiary(ies) during quarters that begin on or after the Signing Date, determined as follows:
(i) if the Issuer or the applicable IDI Subsidiary is a bank, by subtracting (A) the aggregate dollar amount of recoveries reflected on line RIAD4605 of its Call Reports for such quarters from (B) the aggregate dollar amount of charge-offs reflected on line RIAD4635 of its Call Reports for such quarters (without duplication as a result of such dollar amounts being reported on a year-to-date basis); or
(ii) if the Issuer or the applicable IDI Subsidiary is a thrift, by subtracting (A) the sum of the aggregate dollar amount of recoveries reflected on line VA140 of its Call Reports for such quarters and the aggregate dollar amount of adjustments reflected on line VA150 of its Call Reports for such quarters from (B) the aggregate dollar amount of charge-offs reflected on line VA160 of its Call Reports for such quarters.
(m) Charter means the Issuers certificate or articles of incorporation, articles of association, or similar organizational document.
(n) CPP Lending Incentive Fee has the meaning set forth in Section 3(e).
(o) Current Period has the meaning set forth in Section 3(a)(i)(2).
(p) Dividend Payment Date means January 1, April 1, July 1, and October 1 of each year.
(q) Dividend Period means the period from and including any Dividend Payment Date to, but excluding, the next Dividend Payment Date; provided, however , the initial Dividend Period shall be the period from and including the Original Issue Date to, but excluding, the next Dividend Payment Date (the Initial Dividend Period ).
(r) Dividend Record Date has the meaning set forth in Section 3(b).
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(s) Dividend Reference Period has the meaning set forth in Section 3(a)(i)(2).
(t) GAAP means generally accepted accounting principles in the United States.
(u) Holding Company Preferred Stock has the meaning set forth in Section 7(c)(v).
(v) Holding Company Transaction means the occurrence of (a) any transaction (including, without limitation, any acquisition, merger or consolidation) the result of which is that a person or group within the meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, (i) becomes the direct or indirect ultimate beneficial owner, as defined in Rule 13d-3 under that Act, of common equity of the Issuer representing more than 50% of the voting power of the outstanding Common Stock or (ii) is otherwise required to consolidate the Issuer for purposes of generally accepted accounting principles in the United States, or (b) any consolidation or merger of the Issuer or similar transaction or any sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of the consolidated assets of the Issuer and its subsidiaries, taken as a whole, to any Person other than one of the Issuers subsidiaries; provided that, in the case of either clause (a) or (b), the Issuer or the Acquiror is or becomes a Bank Holding Company or Savings and Loan Holding Company.
(w) IDI Subsidiary means any Issuer Subsidiary that is an insured depository institution.
(x) Increase in QSBL means:
(i) with respect to the first (1st) Dividend Period, the difference obtained by subtracting (A) the Baseline from (B) QSBL set forth in the Initial Supplemental Report (as defined in the Definitive Agreement); and
(ii) with respect to each subsequent Dividend Period, the difference obtained by subtracting (A) the Baseline from (B) QSBL for the Dividend Reference Period for the Current Period.
(y) Initial Dividend Period has the meaning set forth in the definition of Dividend Period.
(z) Issuer Subsidiary means any subsidiary of the Issuer.
(aa) Liquidation Preference has the meaning set forth in Section 4(a).
(bb) Non-Qualifying Portion Percentage means, with respect to any particular Dividend Period, the percentage obtained by subtracting the Qualifying Portion Percentage from one (1).
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(cc) Original Issue Date means the date on which shares of Designated Preferred Stock are first issued.
(dd) Percentage Change in QSBL has the meaning set forth in Section 3(a)(ii).
(ee) Person means a legal person, including any individual, corporation, estate, partnership, joint venture, association, joint-stock company, limited liability company or trust.
(ff) Preferred Director has the meaning set forth in Section 7(c).
(gg) Preferred Stock means any and all series of preferred stock of the Issuer, including the Designated Preferred Stock.
(hh) Previously Acquired Preferred Shares has the meaning set forth in the Definitive Agreement.
(ii) Private Capital means, if the Issuer is Matching Private Investment Supported (as defined in the Definitive Agreement), the equity capital received by the Issuer or the applicable Affiliate of the Issuer from one or more non-governmental investors in accordance with Section 1.3(m) of the Definitive Agreement.
(jj) Publicly-traded means a company that (i) has a class of securities that is traded on a national securities exchange and (ii) is required to file periodic reports with either the Securities and Exchange Commission or its primary federal bank regulator.
(kk) Qualified Small Business Lending or QSBL means, with respect to any particular Dividend Period, the Quarter-End Adjusted Qualified Small Business Lending for such Dividend Period set forth in the applicable Supplemental Report.
(ll) Qualifying Portion Percentage means, with respect to any particular Dividend Period, the percentage obtained by dividing (i) the Increase in QSBL for such Dividend Period by (ii) the aggregate Liquidation Amount of then-outstanding Designated Preferred Stock.
(mm) Savings and Loan Holding Company means a company registered as such with the Office of Thrift Supervision pursuant to 12 U.S.C. §1467a(b) and the regulations of the Office of Thrift Supervision promulgated thereunder.
(nn) Share Dilution Amount means the increase in the number of diluted shares outstanding (determined in accordance with GAAP applied on a consistent basis, and as measured from the date of the Issuers most recent consolidated financial statements prior to the Signing Date) resulting from the grant, vesting or exercise of equity-based compensation to employees and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification or similar transaction.
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(oo) Signing Date Tier 1 Capital Amount means $33,593,000.00.
(pp) Standard Provisions mean these Standard Provisions that form a part of the Certificate of Designation relating to the Designated Preferred Stock.
(qq) Supplemental Report means a Supplemental Report delivered by the Issuer to Treasury pursuant to the Definitive Agreement.
(rr) Tier 1 Dividend Threshold means, as of any particular date, the result of the following formula:
( ( A + B C ) * 0.9 ) D
where:
A = | Signing Date Tier 1 Capital Amount; |
B = | the aggregate Liquidation Amount of the Designated Preferred Stock issued to Treasury; |
C = | the aggregate amount of Charge-Offs since the Signing Date; and |
D = | (i) beginning on the first day of the eleventh (11th) Dividend Period, the amount equal to ten percent (10%) of the aggregate Liquidation Amount of the Designated Preferred Stock issued to Treasury as of the Effective Date (without regard to any redemptions of Designated Preferred Stock that may have occurred thereafter) for every one percent (1%) of positive Percentage Change in Qualified Small Business Lending between the ninth (9th) Dividend Period and the Baseline; and |
(ii) zero (0) at all other times.
(ss) Voting Parity Stock means, with regard to any matter as to which the holders of Designated Preferred Stock are entitled to vote as specified in Section 7(d) of these Standard Provisions that form a part of the Certificate of Designation, any and all series of Parity Stock upon which like voting rights have been conferred and are exercisable with respect to such matter.
SBLF Participant No. 0422 | A-5 |
Section 3. Dividends .
(a) Rate .
(i) | The Applicable Dividend Rate shall be determined as follows: |
(1) | With respect to the Initial Dividend Period, the Applicable Dividend Rate shall be five percent (5.0000000%). |
(2) | With respect to each of the second (2nd) through the tenth (10th) Dividend Periods, inclusive (in each case, the Current Period ), the Applicable Dividend Rate shall be: |
(A) (x) the applicable rate set forth in column A of the table in Section 3(a)(iii), based on the Percentage Change in QSBL between the Dividend Period that was two Dividend Periods prior to the Current Period (the Dividend Reference Period ) and the Baseline, multiplied by (y) the Qualifying Portion Percentage; plus
(B) (x) five percent (5.0000000%) multiplied by (y) the Non-Qualifying Portion Percentage.
In each such case, the Applicable Dividend Rate shall be determined at the time the Issuer delivers a complete and accurate Supplemental Report to Treasury with respect to the Dividend Reference Period.
(3) | With respect to the eleventh (11th) through the eighteenth (18th) Dividend Periods, inclusive, and that portion of the nineteenth (19th) Dividend Period prior to, but not including, the four and one half (4 1 ⁄ 2 ) year anniversary of the Original Issue Date, the Applicable Dividend Rate shall be: |
(A) (x) the applicable rate set forth in column B of the table in Section 3(a)(iii), based on the Percentage Change in QSBL between the ninth (9th) Dividend Period and the Baseline, multiplied by (y) the Qualifying Portion Percentage, calculated as of the last day of the ninth (9th) Dividend Period; plus
(B) (x) five percent (5.0000000%) multiplied by (y) the Non-Qualifying Portion Percentage, calculated as of the last day of the ninth (9th) Dividend Period.
In such case, the Applicable Dividend Rate shall be determined at the time the Issuer delivers a complete and accurate Supplemental Report to Treasury with respect to the ninth (9th) Dividend Period.
(4) | With respect to (A) that portion of the nineteenth (19th) Dividend Period beginning on the four and one half (4 1 ⁄ 2 ) year anniversary of the Original Issue Date and (B) all Dividend Periods thereafter, the Applicable Dividend Rate shall be nine percent (9%). |
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(5) | Notwithstanding anything herein to the contrary, if the Issuer fails to submit a Supplemental Report that is due during any of the second (2nd) through tenth (10th) Dividend Periods on or before the sixtieth (60th) day of such Dividend Period, the Issuers QSBL for the Dividend Period that would have been covered by such Supplemental Report shall be zero (0) for purposes hereof. |
(6) | Notwithstanding anything herein to the contrary, but subject to Section 3(a)(i)(5) above, if the Issuer fails to submit the Supplemental Report that is due during the tenth (10th) Dividend Period, the Issuers QSBL shall be zero (0) for purposes of calculating the Applicable Dividend Rate pursuant to Section 3(a)(i)(3) and (4). The Applicable Dividend Rate shall be re-determined effective as of the first day of the calendar quarter following the date such failure is remedied, provided it is remedied prior to the four and one half (4 1 ⁄ 2 ) anniversary of the Original Issue Date. |
(7) | Notwithstanding anything herein to the contrary, if the Issuer fails to submit any of the certificates required by Sections 3.1(d)(ii) or 3.1(d)(iii) of the Definitive Agreement when and as required thereby, the Issuers QSBL shall be zero (0) for purposes of calculating the Applicable Dividend Rate pursuant to Section 3(a)(i)(2) or (3) above until such failure is remedied. |
(ii) The Percentage Change in Qualified Lending between any given Dividend Period and the Baseline shall be the result of the following formula, expressed as a percentage:
( |
( QSBL for the Dividend Period Baseline ) |
) | x 100 | |||||
Baseline |
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(iii) The following table shall be used for determining the Applicable Dividend Rate:
The Applicable Dividend Rate shall be: | ||||||||
If the Percentage Change in Qualified Lending is: |
Column A
(each of the 2nd 10th Dividend Periods) |
Column B
(11th 18th, and the first part of the 19th, Dividend Periods) |
||||||
0% or less |
5 | % | 7 | % | ||||
More than 0%, but less than 2.5% |
5 | % | 5 | % | ||||
2.5% or more, but less than 5% |
4 | % | 4 | % | ||||
5% or more, but less than 7.5% |
3 | % | 3 | % | ||||
7.5% or more, but less than 10% |
2 | % | 2 | % | ||||
10% or more |
1 | % | 1 | % |
(iv) If the Issuer consummates a Business Combination, a purchase of loans or a purchase of participations in loans and the Designated Preferred Stock remains outstanding thereafter, then the Baseline shall thereafter be the Quarter-End Adjusted Small Business Lending Baseline set forth on the Quarterly Supplemental Report (as defined in the Definitive Agreement).
(b) Payment . Holders of Designated Preferred Stock shall be entitled to receive, on each share of Designated Preferred Stock if, as and when declared by the Board of Directors or any duly authorized committee of the Board of Directors, but only out of assets legally available therefor, non-cumulative cash dividends with respect to:
(i) each Dividend Period (other than the Initial Dividend Period) at a rate equal to one-fourth ( 1 ⁄ 4 ) of the Applicable Dividend Rate with respect to each Dividend Period on the Liquidation Amount per share of Designated Preferred Stock, and no more, payable quarterly in arrears on each Dividend Payment Date; and
(ii) the Initial Dividend Period, on the first such Dividend Payment Date to occur at least twenty (20) calendar days after the Original Issue Date, an amount equal to (A) the Applicable Dividend Rate with respect to the Initial Dividend Period multiplied by (B) the number of days from the Original Issue Date to the last day of the Initial Dividend Period (inclusive) divided by 360.
In the event that any Dividend Payment Date would otherwise fall on a day that is not a Business Day, the dividend payment due on that date will be postponed to the next day that is a Business Day and no additional dividends will accrue as a result of that postponement. For avoidance of doubt, payable quarterly in arrears means that, with respect to any particular Dividend Period, dividends begin accruing on the first day of such Dividend Period and are payable on the first day of the next Dividend Period.
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The amount of dividends payable on Designated Preferred Stock on any date prior to the end of a Dividend Period, and for the initial Dividend Period, shall be computed on the basis of a 360-day year consisting of four 90-day quarters, and actual days elapsed over a 90-day quarter.
Dividends that are payable on Designated Preferred Stock on any Dividend Payment Date will be payable to holders of record of Designated Preferred Stock as they appear on the stock register of the Issuer on the applicable record date, which shall be the 15th calendar day immediately preceding such Dividend Payment Date or such other record date fixed by the Board of Directors or any duly authorized committee of the Board of Directors that is not more than 60 nor less than 10 days prior to such Dividend Payment Date (each, a Dividend Record Date ). Any such day that is a Dividend Record Date shall be a Dividend Record Date whether or not such day is a Business Day.
Holders of Designated Preferred Stock shall not be entitled to any dividends, whether payable in cash, securities or other property, other than dividends (if any) declared and payable on Designated Preferred Stock as specified in this Section 3 (subject to the other provisions of the Certificate of Designation).
(c) Non-Cumulative . Dividends on shares of Designated Preferred Stock shall be non-cumulative. If the Board of Directors or any duly authorized committee of the Board of Directors does not declare a dividend on the Designated Preferred Stock in respect of any Dividend Period:
(i) the holders of Designated Preferred Stock shall have no right to receive any dividend for such Dividend Period, and the Issuer shall have no obligation to pay a dividend for such Dividend Period, whether or not dividends are declared for any subsequent Dividend Period with respect to the Designated Preferred Stock; and
(ii) the Issuer shall, within five (5) calendar days, deliver to the holders of the Designated Preferred Stock a written notice executed by the Chief Executive Officer and the Chief Financial Officer of the Issuer stating the Board of Directors rationale for not declaring dividends.
(d) Priority of Dividends; Restrictions on Dividends .
(i) Subject to Sections 3(d)(ii), (iii) and (v) and any restrictions imposed by the Appropriate Federal Banking Agency or, if applicable, the Issuers state bank supervisor (as defined in Section 3(r) of the Federal Deposit Insurance Act (12 U.S.C. § 1813(q)), so long as any share of Designated Preferred Stock remains outstanding, the Issuer may declare and pay dividends on the Common Stock, any other shares of Junior Stock, or Parity Stock, in each case only if (A) after giving effect to such dividend the Issuers Tier 1 capital would be at least equal to the Tier 1 Dividend Threshold , and (B) full dividends on all outstanding shares of Designated Preferred Stock for the most recently completed Dividend Period have been or are contemporaneously declared and paid.
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(ii) If a dividend is not declared and paid in full on the Designated Preferred Stock in respect of any Dividend Period, then from the last day of such Dividend Period until the last day of the third (3rd) Dividend Period immediately following it, no dividend or distribution shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than dividends payable solely in shares of Common Stock) or Parity Stock; provided, however, that in any such Dividend Period in which a dividend is declared and paid on the Designated Preferred Stock, dividends may be paid on Parity Stock to the extent necessary to avoid any material breach of a covenant by which the Issuer is bound.
(iii) When dividends have not been declared and paid in full for an aggregate of four (4) Dividend Periods or more, and during such time the Issuer was not subject to a regulatory determination that prohibits the declaration and payment of dividends, the Issuer shall, within five (5) calendar days of each missed payment, deliver to the holders of the Designated Preferred Stock a certificate executed by at least a majority of the Board of Directors stating that the Board of Directors used its best efforts to declare and pay such dividends in a manner consistent with (A) safe and sound banking practices and (B) the directors fiduciary obligations.
(iv) Subject to the foregoing and Section 3(e) below and not otherwise, such dividends (payable in cash, securities or other property) as may be determined by the Board of Directors or any duly authorized committee of the Board of Directors may be declared and paid on any securities, including Common Stock and other Junior Stock, from time to time out of any funds legally available for such payment, and holders of Designated Preferred Stock shall not be entitled to participate in any such dividends.
(v) If the Issuer is not Publicly-Traded, then after the tenth (10th) anniversary of the Signing Date, so long as any share of Designated Preferred Stock remains outstanding, no dividend or distribution shall be declared or paid on the Common Stock or any other shares of Junior Stock (other than dividends payable solely in shares of Common Stock) or Parity Stock.
(e) Special Lending Incentive Fee Related to CPP . If Treasury held Previously Acquired Preferred Shares immediately prior to the Original Issue Date and the Issuer did not apply to Treasury to redeem such Previously Acquired Preferred Shares prior to December 16, 2010, and if the Issuers Supplemental Report with respect to the ninth (9th) Dividend Period reflects an amount of Qualified Small Business Lending that is less than or equal to the Baseline (or if the Issuer fails to timely file a Supplemental Report with respect to the ninth (9th) Dividend Period), then beginning on N/A and on all Dividend Payment Dates thereafter ending on N/A the Issuer shall pay to the Holders of Designated Preferred Stock, on each share of Designated Preferred Stock, but only out of assets legally available therefor, a fee equal to 0.5% of the Liquidation Amount per share of Designated Preferred Stock ( CPP Lending Incentive Fee ). All references in Section 3(d) to dividends on the Designated Preferred Stock shall be deemed to include the CPP Lending Incentive Fee.
SBLF Participant No. 0422 | A-10 |
Section 4. Liquidation Rights .
(a) Voluntary or Involuntary Liquidation . In the event of any liquidation, dissolution or winding up of the affairs of the Issuer, whether voluntary or involuntary, holders of Designated Preferred Stock shall be entitled to receive for each share of Designated Preferred Stock, out of the assets of the Issuer or proceeds thereof (whether capital or surplus) available for distribution to stockholders of the Issuer, subject to the rights of any creditors of the Issuer, before any distribution of such assets or proceeds is made to or set aside for the holders of Common Stock and any other stock of the Issuer ranking junior to Designated Preferred Stock as to such distribution, payment in full in an amount equal to the sum of (i) the Liquidation Amount per share and (ii) the amount of any accrued and unpaid dividends on each such share (such amounts collectively, the Liquidation Preference ).
(b) Partial Payment . If in any distribution described in Section 4(a) above the assets of the Issuer or proceeds thereof are not sufficient to pay in full the amounts payable with respect to all outstanding shares of Designated Preferred Stock and the corresponding amounts payable with respect of any other stock of the Issuer ranking equally with Designated Preferred Stock as to such distribution, holders of Designated Preferred Stock and the holders of such other stock shall share ratably in any such distribution in proportion to the full respective distributions to which they are entitled.
(c) Residual Distributions . If the Liquidation Preference has been paid in full to all holders of Designated Preferred Stock and the corresponding amounts payable with respect of any other stock of the Issuer ranking equally with Designated Preferred Stock as to such distribution has been paid in full, the holders of other stock of the Issuer shall be entitled to receive all remaining assets of the Issuer (or proceeds thereof) according to their respective rights and preferences.
(d) Merger, Consolidation and Sale of Assets Is Not Liquidation . For purposes of this Section 4, the merger or consolidation of the Issuer with any other corporation or other entity, including a merger or consolidation in which the holders of Designated Preferred Stock receive cash, securities or other property for their shares, or the sale, lease or exchange (for cash, securities or other property) of all or substantially all of the assets of the Issuer, shall not constitute a liquidation, dissolution or winding up of the Issuer.
Section 5. Redemption .
(a) Optional Redemption .
(i) Subject to the other provisions of this Section 5:
(1) | The Issuer, at its option, subject to the approval of the Appropriate Federal Banking Agency, may redeem, in whole or in part, at any time and from time to time, out of funds legally available therefor, the shares of Designated Preferred Stock at the time outstanding; and |
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(2) | If, after the Signing Date, there is a change in law that modifies the terms of Treasurys investment in the Designated Preferred Stock or the terms of Treasurys Small Business Lending Fund program in a materially adverse respect for the Issuer, the Issuer may, after consultation with the Appropriate Federal Banking Agency, redeem all of the shares of Designated Preferred Stock at the time outstanding. |
(ii) The per-share redemption price for shares of Designated Preferred Stock shall be equal to the sum of:
(1) | the Liquidation Amount per share, |
(2) | the per-share amount of any unpaid dividends for the then current Dividend Period at the Applicable Dividend Rate to, but excluding, the date fixed for redemption (regardless of whether any dividends are actually declared for that Dividend Period; and |
(3) | the pro rata amount of CPP Lending Incentive Fees for the current Dividend Period. |
The redemption price for any shares of Designated Preferred Stock shall be payable on the redemption date to the holder of such shares against surrender of the certificate(s) evidencing such shares to the Issuer or its agent. Any declared but unpaid dividends for the then current Dividend Period payable on a redemption date that occurs subsequent to the Dividend Record Date for a Dividend Period shall not be paid to the holder entitled to receive the redemption price on the redemption date, but rather shall be paid to the holder of record of the redeemed shares on such Dividend Record Date relating to the Dividend Payment Date as provided in Section 3 above.
(b) No Sinking Fund . The Designated Preferred Stock will not be subject to any mandatory redemption, sinking fund or other similar provisions. Holders of Designated Preferred Stock will have no right to require redemption or repurchase of any shares of Designated Preferred Stock.
(c) Notice of Redemption . Notice of every redemption of shares of Designated Preferred Stock shall be given by first class mail, postage prepaid, addressed to the holders of record of the shares to be redeemed at their respective last addresses appearing on the books of the Issuer. Such mailing shall be at least 30 days and not more than 60 days before the date fixed for redemption. Any notice mailed as provided in this Subsection shall be conclusively presumed to have been duly given, whether or not the holder receives such notice, but failure duly to give such notice by mail, or any defect in such notice or in the mailing thereof, to any holder of shares of Designated Preferred Stock designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of Designated Preferred Stock. Notwithstanding the foregoing, if shares of Designated Preferred Stock are issued in
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book-entry form through The Depository Trust Company or any other similar facility, notice of redemption may be given to the holders of Designated Preferred Stock at such time and in any manner permitted by such facility. Each notice of redemption given to a holder shall state: (1) the redemption date; (2) the number of shares of Designated Preferred Stock to be redeemed and, if less than all the shares held by such holder are to be redeemed, the number of such shares to be redeemed from such holder; (3) the redemption price; and (4) the place or places where certificates for such shares are to be surrendered for payment of the redemption price.
(d) Partial Redemption . In case of any redemption of part of the shares of Designated Preferred Stock at the time outstanding, the shares to be redeemed shall be selected either pro rata or in such other manner as the Board of Directors or a duly authorized committee thereof may determine to be fair and equitable, but in any event the shares to be redeemed shall not be less than the Minimum Amount. Subject to the provisions hereof, the Board of Directors or a duly authorized committee thereof shall have full power and authority to prescribe the terms and conditions upon which shares of Designated Preferred Stock shall be redeemed from time to time, subject to the approval of the Appropriate Federal Banking Agency. If fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without charge to the holder thereof.
(e) Effectiveness of Redemption . If notice of redemption has been duly given and if on or before the redemption date specified in the notice all funds necessary for the redemption have been deposited by the Issuer, in trust for the pro rata benefit of the holders of the shares called for redemption, with a bank or trust company doing business in the Borough of Manhattan, The City of New York, and having a capital and surplus of at least $500 million and selected by the Board of Directors, so as to be and continue to be available solely therefor, then, notwithstanding that any certificate for any share so called for redemption has not been surrendered for cancellation, on and after the redemption date dividends shall cease to accrue on all shares so called for redemption, all shares so called for redemption shall no longer be deemed outstanding and all rights with respect to such shares shall forthwith on such redemption date cease and terminate, except only the right of the holders thereof to receive the amount payable on such redemption from such bank or trust company, without interest. Any funds unclaimed at the end of three years from the redemption date shall, to the extent permitted by law, be released to the Issuer, after which time the holders of the shares so called for redemption shall look only to the Issuer for payment of the redemption price of such shares.
(f) Status of Redeemed Shares . Shares of Designated Preferred Stock that are redeemed, repurchased or otherwise acquired by the Issuer shall revert to authorized but unissued shares of Preferred Stock ( provided that any such cancelled shares of Designated Preferred Stock may be reissued only as shares of any series of Preferred Stock other than Designated Preferred Stock).
Section 6. Conversion . Holders of Designated Preferred Stock shares shall have no right to exchange or convert such shares into any other securities.
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Section 7. Voting Rights .
(a) General . The holders of Designated Preferred Stock shall not have any voting rights except as set forth below or as otherwise from time to time required by law.
(b) Board Observation Rights . Whenever, at any time or times, dividends on the shares of Designated Preferred Stock have not been declared and paid in full within five (5) Business Days after each Dividend Payment Date for an aggregate of five (5) Dividend Periods or more, whether or not consecutive, the Issuer shall invite a representative selected by the holders of a majority of the outstanding shares of Designated Preferred Stock, voting as a single class, to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors in connection with such meetings; provided , that the holders of the Designated Preferred Stock shall not be obligated to select such a representative, nor shall such representative, if selected, be obligated to attend any meeting to which he/she is invited. The rights of the holders of the Designated Preferred Stock set forth in this Section 7(b) shall terminate when full dividends have been timely paid on the Designated Preferred Stock for at least four consecutive Dividend Periods, subject to revesting in the event of each and every subsequent default of the character above mentioned.
(c) Preferred Stock Directors . Whenever, at any time or times, (i) dividends on the shares of Designated Preferred Stock have not been declared and paid in full within five (5) Business Days after each Dividend Payment Date for an aggregate of six (6) Dividend Periods or more, whether or not consecutive, and (ii) the aggregate liquidation preference of the then-outstanding shares of Designated Preferred Stock is greater than or equal to $25,000,000, the authorized number of directors of the Issuer shall automatically be increased by two and the holders of the Designated Preferred Stock, voting as a single class, shall have the right, but not the obligation, to elect two directors (hereinafter the Preferred Directors and each a Preferred Director ) to fill such newly created directorships at the Issuers next annual meeting of stockholders (or, if the next annual meeting is not yet scheduled or is scheduled to occur more than thirty days later, the President of the Company shall promptly call a special meeting for that purpose) and at each subsequent annual meeting of stockholders until full dividends have been timely paid on the Designated Preferred Stock for at least four consecutive Dividend Periods, at which time such right shall terminate with respect to the Designated Preferred Stock, except as herein or by law expressly provided, subject to revesting in the event of each and every subsequent default of the character above mentioned; provided that it shall be a qualification for election for any Preferred Director that the election of such Preferred Director shall not cause the Issuer to violate any corporate governance requirements of any securities exchange or other trading facility on which securities of the Issuer may then be listed or traded that listed or traded companies must have a majority of independent directors. Upon any termination of the right of the holders of shares of Designated Preferred Stock to vote for directors as provided above, the Preferred Directors shall cease to be qualified as directors, the term of office of all Preferred Directors then in office shall terminate immediately and the authorized number of directors shall be reduced by the number of Preferred Directors elected pursuant hereto. Any Preferred Director may be removed at any time, with or without cause, and any vacancy created thereby may be filled, only by the affirmative vote of the holders a majority of the shares of Designated Preferred Stock at the time outstanding voting separately as a class. If the office of any Preferred Director
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becomes vacant for any reason other than removal from office as aforesaid, the holders of a majority of the outstanding shares of Designated Preferred Stock, voting as a single class, may choose a successor who shall hold office for the unexpired term in respect of which such vacancy occurred.
(d) Class Voting Rights as to Particular Matters . So long as any shares of Designated Preferred Stock are outstanding, in addition to any other vote or consent of stockholders required by law or by the Charter, the written consent of (x) Treasury if Treasury holds any shares of Designated Preferred Stock, or (y) the holders of a majority of the outstanding shares of Designated Preferred Stock, voting as a single class, if Treasury does not hold any shares of Designated Preferred Stock, shall be necessary for effecting or validating:
(i) Authorization of Senior Stock . Any amendment or alteration of the Certificate of Designation for the Designated Preferred Stock or the Charter to authorize or create or increase the authorized amount of, or any issuance of, any shares of, or any securities convertible into or exchangeable or exercisable for shares of, any class or series of capital stock of the Issuer ranking senior to Designated Preferred Stock with respect to either or both the payment of dividends and/or the distribution of assets on any liquidation, dissolution or winding up of the Issuer;
(ii) Amendment of Designated Preferred Stock . Any amendment, alteration or repeal of any provision of the Certificate of Designation for the Designated Preferred Stock or the Charter (including, unless no vote on such merger or consolidation is required by Section 7(d)(iii) below, any amendment, alteration or repeal by means of a merger, consolidation or otherwise) so as to adversely affect the rights, preferences, privileges or voting powers of the Designated Preferred Stock;
(iii) Share Exchanges, Reclassifications, Mergers and Consolidations . Subject to Section 7(d)(v) below, any consummation of a binding share exchange or reclassification involving the Designated Preferred Stock, or of a merger or consolidation of the Issuer with another corporation or other entity, unless in each case (x) the shares of Designated Preferred Stock remain outstanding or, in the case of any such merger or consolidation with respect to which the Issuer is not the surviving or resulting entity, are converted into or exchanged for preference securities of the surviving or resulting entity or its ultimate parent, and (y) such shares remaining outstanding or such preference securities, as the case may be, have such rights, preferences, privileges and voting powers, and limitations and restrictions thereof that are the same as the rights, preferences, privileges and voting powers, and limitations and restrictions thereof, of Designated Preferred Stock immediately prior to such consummation, taken as a whole; provided , that in all cases, the obligations of the Issuer are assumed (by operation of law or by express written assumption) by the resulting entity or its ultimate parent;
(iv) Certain Asset Sales . Any sale of all, substantially all, or any material portion of, the assets of the Company, if the Designated Preferred Stock will not be redeemed in full contemporaneously with the consummation of such sale; and
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(v) Holding Company Transactions . Any consummation of a Holding Company Transaction, unless as a result of the Holding Company Transaction each share of Designated Preferred Stock shall be converted into or exchanged for one share with an equal liquidation preference of preference securities of the Issuer or the Acquiror (the Holding Company Preferred Stock ). Any such Holding Company Preferred Stock shall entitle holders thereof to dividends from the date of issuance of such Holding Company Preferred Stock on terms that are equivalent to the terms set forth herein, and shall have such other rights, preferences, privileges and voting powers, and limitations and restrictions thereof that are the same as the rights, preferences, privileges and voting powers, and limitations and restrictions thereof, of Designated Preferred Stock immediately prior to such conversion or exchange, taken as a whole;
provided , however , that for all purposes of this Section 7(d), any increase in the amount of the authorized Preferred Stock, including any increase in the authorized amount of Designated Preferred Stock necessary to satisfy preemptive or similar rights granted by the Issuer to other persons prior to the Signing Date, or the creation and issuance, or an increase in the authorized or issued amount, whether pursuant to preemptive or similar rights or otherwise, of any other series of Preferred Stock, or any securities convertible into or exchangeable or exercisable for any other series of Preferred Stock, ranking equally with and/or junior to Designated Preferred Stock with respect to the payment of dividends (whether such dividends are cumulative or non-cumulative) and the distribution of assets upon liquidation, dissolution or winding up of the Issuer will not be deemed to adversely affect the rights, preferences, privileges or voting powers, and shall not require the affirmative vote or consent of, the holders of outstanding shares of the Designated Preferred Stock.
(e) Changes after Provision for Redemption . No vote or consent of the holders of Designated Preferred Stock shall be required pursuant to Section 7(d) above if, at or prior to the time when any such vote or consent would otherwise be required pursuant to such Section, all outstanding shares of the Designated Preferred Stock shall have been redeemed, or shall have been called for redemption upon proper notice and sufficient funds shall have been deposited in trust for such redemption, in each case pursuant to Section 5 above.
(f) Procedures for Voting and Consents . The rules and procedures for calling and conducting any meeting of the holders of Designated Preferred Stock (including, without limitation, the fixing of a record date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written consents and any other aspect or matter with regard to such a meeting or such consents shall be governed by any rules of the Board of Directors or any duly authorized committee of the Board of Directors, in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Charter, the Bylaws, and applicable law and the rules of any national securities exchange or other trading facility on which Designated Preferred Stock is listed or traded at the time.
Section 8. Restriction on Redemptions and Repurchases .
(a) Subject to Sections 8(b) and (c), so long as any share of Designated Preferred Stock remains outstanding, the Issuer may repurchase or redeem any shares of Capital Stock (as defined below), in each case only if (i) after giving effect to such dividend, repurchase
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or redemption, the Issuers Tier 1 capital would be at least equal to the Tier 1 Dividend Threshold and (ii) dividends on all outstanding shares of Designated Preferred Stock for the most recently completed Dividend Period have been or are contemporaneously declared and paid (or have been declared and a sum sufficient for the payment thereof has been set aside for the benefit of the holders of shares of Designated Preferred Stock on the applicable record date).
(b) If a dividend is not declared and paid on the Designated Preferred Stock in respect of any Dividend Period, then from the last day of such Dividend Period until the last day of the third (3rd) Dividend Period immediately following it, neither the Issuer nor any Issuer Subsidiary shall, redeem, purchase or acquire any shares of Common Stock, Junior Stock, Parity Stock or other capital stock or other equity securities of any kind of the Issuer or any Issuer Subsidiary, or any trust preferred securities issued by the Issuer or any Affiliate of the Issuer (Capital Stock), (other than (i) redemptions, purchases, repurchases or other acquisitions of the Designated Preferred Stock and (ii) repurchases of Junior Stock or Common Stock in connection with the administration of any employee benefit plan in the ordinary course of business (including purchases to offset any Share Dilution Amount pursuant to a publicly announced repurchase plan) and consistent with past practice; provided that any purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilution Amount, (iii) the acquisition by the Issuer or any of the Issuer Subsidiaries of record ownership in Junior Stock or Parity Stock for the beneficial ownership of any other persons (other than the Issuer or any other Issuer Subsidiary), including as trustees or custodians, (iv) the exchange or conversion of Junior Stock for or into other Junior Stock or of Parity Stock or trust preferred securities for or into other Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock, in each case set forth in this clause (iv), solely to the extent required pursuant to binding contractual agreements entered into prior to the Signing Date or any subsequent agreement for the accelerated exercise, settlement or exchange thereof for Common Stock, (v) redemptions of securities held by the Issuer or any wholly-owned Issuer Subsidiary or (vi) redemptions, purchases or other acquisitions of capital stock or other equity securities of any kind of any Issuer Subsidiary required pursuant to binding contractual agreements entered into prior to (x) if Treasury held Previously Acquired Preferred Shares immediately prior to the Original Issue Date, the original issue date of such Previously Acquired Preferred Shares, or (y) otherwise, the Signing Date).
(c) If the Issuer is not Publicly-Traded, then after the tenth (10th) anniversary of the Signing Date, so long as any share of Designated Preferred Stock remains outstanding, no Common Stock, Junior Stock or Parity Stock shall be, directly or indirectly, purchased, redeemed or otherwise acquired for consideration by the Issuer or any of its subsidiaries.
Section 9. No Preemptive Rights . No share of Designated Preferred Stock shall have any rights of preemption whatsoever as to any securities of the Issuer, or any warrants, rights or options issued or granted with respect thereto, regardless of how such securities, or such warrants, rights or options, may be designated, issued or granted.
Section 10. References to Line Items of Supplemental Reports . If Treasury modifies the form of Supplemental Report, pursuant to its rights under the Definitive Agreement, and any such modification includes a change to the caption or number of any line item on the Supplemental Report, then any reference herein to such line item shall thereafter be a reference to such re-captioned or re-numbered line item.
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Section 11. Record Holders . To the fullest extent permitted by applicable law, the Issuer and the transfer agent for Designated Preferred Stock may deem and treat the record holder of any share of Designated Preferred Stock as the true and lawful owner thereof for all purposes, and neither the Issuer nor such transfer agent shall be affected by any notice to the contrary.
Section 12. Notices . All notices or communications in respect of Designated Preferred Stock shall be sufficiently given if given in writing and delivered in person or by first class mail, postage prepaid, or if given in such other manner as may be permitted in this Certificate of Designation, in the Charter or Bylaws or by applicable law. Notwithstanding the foregoing, if shares of Designated Preferred Stock are issued in book-entry form through The Depository Trust Company or any similar facility, such notices may be given to the holders of Designated Preferred Stock in any manner permitted by such facility.
Section 13. Replacement Certificates . The Issuer shall replace any mutilated certificate at the holders expense upon surrender of that certificate to the Issuer. The Issuer shall replace certificates that become destroyed, stolen or lost at the holders expense upon delivery to the Issuer of reasonably satisfactory evidence that the certificate has been destroyed, stolen or lost, together with any indemnity that may be reasonably required by the Issuer.
Section 14. Other Rights . The shares of Designated Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Charter or as provided by applicable law.
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Exhibit 3.6
BYLAWS
OF
FRANKLIN FINANCIAL NETWORK, INC.
ARTICLE I
MEETINGS OF SHAREHOLDERS
1. Annual Meeting. The annual meeting of the shareholders shall be held at such time and place, either within or without this State, as may be designated from time to time by the directors.
2. Special Meetings. Special meetings of the shareholders may be called by the chairman of the board, a majority of the board of directors, or, upon written demand, by the holders of not less than one-tenth (1/10) of all the shares entitled to vote at such meeting. The place of said meetings shall be the principal office of the Corporation, unless otherwise designated by the directors.
3. Notice of Shareholder Meetings. Written or printed notice stating the place, day, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called and the person or persons calling the meeting, shall be delivered either personally or by mail or at the direction of the president, secretary, officer, or person calling the meeting to each shareholder entitled to vote at the meeting. If mailed, such notice shall be delivered not less than ten (10) days nor more than two (2) months before the date of the meeting, and shall be deemed to be delivered when deposited in the United States mail addressed to the shareholder at his address as it appears on the stock transfer books of the Corporation, with postage thereon prepaid. The person giving such notice shall certify that the notice required by this paragraph has been given.
4. Quorum Requirements. A majority of the shares entitled to vote shall constitute a quorum for the transaction of business. A meeting may be adjourned despite the absence of a quorum, and notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken. When a quorum is present at any meeting, a majority in interest of the stock there represented shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the charter, these bylaws, or by the laws of Tennessee, a larger or different vote is required, in which case such express provision shall govern the decision of such question.
5. Voting and Proxies. Every shareholder shall be entitled to one (1) vote for each share of stock standing in his name on the books of the Corporation at the time of any regular or special meeting. Every shareholder entitled to vote at a meeting may do so either in person or by written proxy, which proxy shall be filed with the secretary of the meeting before being voted. Such proxy shall entitle the holders thereof to vote at any adjournment of such meeting, but shall not be valid after the final adjournment thereof. No proxy shall be valid after the expiration of eleven (11) months from the date of its execution unless otherwise provided in the proxy.
ARTICLE II
BOARD OF DIRECTORS
1. General Powers. The business and affairs of the Corporation shall be managed by the Board based on information presented by management. The Board shall examine at least once in each calendar year at intervals of not more than fifteen (15) months, all affairs of the Corporation, a report of which shall be included in the minutes.
2. Number and Time of Holding Office. Subject to the requirements of the Charter and the laws of the State of Tennessee, the board may from time to time by the vote of the majority of the whole board determine the number of directors by board resolution. The term whole board as used in the Bylaws shall mean the number of positions on the board regardless of the number of directors then in office. No decrease in the number of directors shall shorten the term of any incumbent director. Directors shall be of legal age but need not be shareholders, unless state law, federal law or a bank regulatory agency so requires. Other qualifications may be required by statute.
3. Election of Directors. Elections for directors shall be held at shareholders meetings at which a quorum is present, and nominations for directors must be mailed to and received by the secretary of the corporation at the principal office of the corporation not less than one hundred twenty (120) days prior to the meeting at which directors are to be elected. Election shall be by written ballot, signed by the shareholder, unless a majority of the shareholders or the chairman of the meeting requires otherwise. At the election, each share of Common Stock shall have one (1) vote which may be cast by the owner of record, or by his authorized representative. The candidates receiving the largest number of votes shall be elected. Cumulative voting is not permitted.
4. Resignations and Removals. Any director at any time may resign by giving written notice of his resignation to the board, the president, or the secretary of the board. Any director who becomes disqualified shall forthwith resign his office; but upon the removal of his disqualification, he shall be eligible for election. Any such resignation shall take effect at the time specified therein or, if the time when it shall become effective shall not be as specified therein, then it shall take effect immediately upon its receipt by the board, the president, or the secretary of the board. Except as specified therein, the acceptance of such resignation shall not be necessary to make it effective. Any director may be removed for cause (as defined in the Charter) by a vote of a majority of the whole board. A director who is disqualified may be removed by the board.
5. Vacancies. Newly created directorships resulting from an increase in the number of authorized directors and vacancies occurring in the board for any reason, including, without limitation, removal from office by vote of the directors as herein provided, shall be filled only by a vote of a majority of the directors then in office, except as otherwise provided in the Charter. Any director so elected shall hold office until the annual meeting of shareholders.
6. Meetings. The annual meeting of the board of directors shall be held immediately after the adjournment of the annual meeting of the shareholders, at which time the officers of the corporation shall be elected. The board may also designate more frequent intervals for regular meetings. Special meetings may be called at any time by the chairman of the board, the president, any two (2) executive officers or one-third (1/3) of the board of directors.
7. Notice of Directors Meetings. The annual and all regular board meetings may be held without notice. Special meetings shall be held upon notice sent by any usual means of communication not less than the minimum number of days before the meeting as permitted by law.
8. Quorum and Vote. The presence of a majority of the directors shall constitute a quorum for the transaction of business. A meeting may be adjourned despite the absence of a quorum, and notice of an adjourned meeting need not be given if the time and place to which the meeting is adjourned are fixed at the meeting at which the adjournment is taken and if the period of adjournment does not exceed one (1) month in any one adjournment. The vote of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board, unless the vote of a greater number is required by the charter, these bylaws, or by the laws of Tennessee.
9. Executive and Other Committees. The board of directors, by a resolution adopted by a majority of its members, may name an executive committee and other committees, consisting of one or more persons, and may delegate to such committee or committees any and all such authority as it deems desirable and as is permissible under Tennessee law.
ARTICLE III
OFFICERS
1. Number. The corporation shall have a president and a secretary, and such other officers as the board of directors shall from time to time deem necessary. Any two or more offices may be held by the same person, except the offices of president and secretary.
2. Election and Term. The officers shall be elected by the board at its annual meeting. Each officer shall serve until the expiration of the term for which he is elected, and thereafter until his successor has been elected and qualified.
3. Duties. All officers shall have such authority and perform such duties in the management of the corporation as are normally incident to their offices and as the board of directors may from time to time provide. If not specified, the duties shall be as follows:
(a) Chairman of the Board (if any) : The chairman of the board shall preside at all meetings of the board of directors and shareholders, unless he requests another officer to preside in his stead. He shall perform all other duties as are properly required of him by the board of directors. The chairman shall have the power to call special meetings of the board of directors and of the shareholders, as provided for in these bylaws, and he shall have the power to sign and execute all contracts and instruments of conveyance in the name of the corporation; to sign stock certificates, checks, drafts, and notes; to vote shares or interests in another corporation or other entity owned by the corporation.
(b) President : The president shall perform such duties as may be assigned by the board of directors. In the case of death, disability or prolonged absence of the chairman, the president shall perform and be vested with all the duties and powers of the chairman.
(c) Vice-President (if any) : The vice-president shall perform such duties as may be assigned to him by the board of directors. In case of the death, disability, or absence of the president, the vice-president shall perform and be vested with all the duties and powers of the president.
(d) Secretary : The secretary shall keep the minutes of the meetings of the board of directors and of the shareholders in a well bound book or books; he shall attend to the giving and serving of notice; he may sign with the president in the name of the corporation all stock certificates, contracts, and instruments authorized by the board of directors; he shall have charge of the certificate books and other books or papers as the board of directors may direct; all of which shall at all reasonable times be open to the examination of any director or shareholder, to the extent required by law, upon application at the office of the corporation during business hours; he shall authenticate records of the corporation; and he shall in addition perform all duties incident to the office of secretary, subject to the control of the board of directors. He shall submit such reports to the board of directors as may be required by it.
(e) CFO (if any) : The CFO shall have the custody of all funds and securities of the corporation and shall keep proper accounts of same; when necessary or proper, he shall endorse, on behalf of the corporation, all checks, notes, and other obligations and shall deposit the same to the credit of the corporation in such bank or banks as the board of directors may designate. He shall enter regularly in the books of the corporation to be kept by him for that purpose a full and accurate account of all monies received and paid out by him on account of the corporation, and he shall at all reasonable times exhibit his books and accounts to any director or shareholder upon application at the office of the corporation during business hours; he shall perform all acts incident to the position of the CFO, subject to the control of the board of directors.
ARTICLE IV
RESIGNATIONS, REMOVALS, AND VACANCIES
1. Resignations. Any officer or director may resign at any time by giving written notice to the chairman of the board, the president, or the secretary. Any such resignation shall take effect at the time specified therein, or, if no time is specified, then upon its delivery to the corporation.
2. Removal of Officers. Any officer or agent may be removed by the board at any time, with or without cause.
3. Removal of Directors. Any or all of the directors may be removed either with or without cause by a proper vote of the shareholders; and, as provided in the charter, may be removed with cause by a majority vote of the entire board. Cause shall include a director willfully or without reasonable cause being absent from any regular or special meeting for the purpose of obstructing or hindering the business of the corporation.
4. Vacancies of Directors. Newly created directorships resulting from an increase in the number of directors, and vacancies occurring in any directorship for any reason, including removal of a director, may be filled by the vote of a majority of the directors then in office, even if less than a quorum exists.
ARTICLE V
INDEMNIFICATION
1. Liability of Officers and Directors. No person shall be liable for any loss or damage suffered on account of any action taken or omitted to be taken by him as a director or officer of the corporation in good faith and in accordance with the standard of conduct set forth in T.C.A. § 48-18-502.
2. Indemnification of Officers and Directors. The corporation shall indemnify to the fullest extent permitted by law any and all persons who may serve or who have served at any time as directors or officers, or who at the request of the board of directors of the corporation may serve or at any time have served as directors or officers of another corporation in which the corporation at such time owned or may own shares of stock or of which it was or may be a creditor, and their respective heirs, administrators, successors, and assigns, against any and all expenses, including amounts paid upon judgments, counsel fees, and amounts paid in settlement (before or after suit is commenced), actually and necessarily incurred by such persons in connection with the defense or settlement of any claim, action, suit, or proceeding in which they, or any of them, are made parties, or a party, or which may be asserted against them or any of them, by reason of being or having been directors or officers or a director or officer of the corporation or such other corporation, except in relation to such matters to which any such director or officer or former director or officer or person shall be adjudged in any action, suit, or proceeding to be liable for his own negligence or misconduct in the performance of his duty. Such indemnification shall be in addition to any other rights to which those indemnified may be entitled under any law, bylaw, agreement, vote of shareholders, or otherwise.
ARTICLE VI
CAPITAL STOCK
1. Stock Certificates. Every shareholder shall be entitled to a certificate or certificates of capital stock of the corporation in such form as may be prescribed by the board of directors. Unless otherwise decided by the board, such certificates shall be signed by the chairman of the board and the secretary of the corporation.
2. Transfer of Shares. Shares of stock may be transferred on the books of the corporation by delivery and surrender of the properly assigned certificate, but subject to any restrictions on transfer imposed by either the applicable securities laws or any shareholder agreement.
3. Loss of Certificates. In the case of the loss, mutilation, or destruction of a certificate of stock, a duplicate certificate may be issued upon such terms as the board of directors shall prescribe.
ARTICLE VII
ACTION BY CONSENT
Whenever the shareholders or directors are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by all the persons or entities entitled to vote thereon and indicating each person or entitys vote or abstention on the action. The action must receive the affirmative vote of the number of votes that would be necessary to authorize or take such action at a meeting.
ARTICLE VIII
RESERVED
ARTICLE IX
AMENDMENT OF BYLAWS
Except as otherwise permitted by law, these bylaws may be amended, added to, or repealed either by: (1) a majority vote of the shares represented at any duly constituted shareholders meeting, or (2) a majority vote of the entire board of directors. Any change in the bylaws made by the board of directors, however, may be amended or repealed by the shareholders.
CERTIFICATION
I certify that these bylaws were adopted by the organizational meeting of the corporation held on April 9, 2007.
/s/ David H. Kemp |
David H. Kemp, Secretary |
Exhibit 4.1
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, WITHOUT PAR VALUE Franklin Financial Network, Inc. transferable only on the books of the Corporation by the holder hereof in person or by Attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. IN WITNESS WHEREOF, the said Corporation has caused this Certificate to be signed by the facsimile signatures of its duly authorized officers and its Corporate seal to be hereunto affixed. DATED:
Franklin Financial Network, Inc. THIS SECURITY HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR ANY OTHER FEDERAL OR STATE REGULATORY AGENCY THIS SECURITY MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED PLEDGED, OR OTHERWISE HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT WITH RESPECTTO THE SECURITYUNDER ANY APPLICABLE FEDERAL OR STATE SECURITIES LAW OR AN OPINION OF COUNSEL THAT THE PROPOSED TRANSACTION IS EXEMPT UNDER THE APPLICABLE FEDERAL AND STATE SECURITIES LAWS OR IS OTHERWISE IN COMPLIANCE WITH SUCH LAWS. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COMas tenants in common UNIF GIFT MIN ACT- Custodian TEN ENTas tenants by the entireties(Cust) (Minor) JT TEN as joint tenants with right of under Uniform Gifts to Minors survivorship and not as tenants Act in common(State) Additional abbreviations may also be used though not in the above list. For Value Received,, hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE) Shares of the Common Stock represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Shares on the books of the within named Corporation with full power of substitution in the premises. Dated: x : . / x wr-mrp- thesignature(s)toTHisASSiGNMENTMUSTcorrespondwiTHTHENAME(S) UPON THE FACE OF TH|S CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. Signature(s) Guaranteed BY: THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SINGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
Exhibit 5.1
|
BAKER DONELSON CENTER 211 COMMERCE S STREET SUITE 800 NASHVILLE, TENNESSEE 37201 PHONE: 615.726.5600 FAX: 615.744.5600 |
|
www.bakerdonelson.com |
February 14, 2014
Franklin Financial Network, Inc.
722 Columbia Avenue
Franklin, Tennessee 37064
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to Franklin Financial Network, Inc. (the Company) in connection with the preparation of a Registration Statement on Form S-4 (the Registration Statement) filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Act), relating to the registration of up to 2,765,481 shares (the Shares) of the Companys common stock, no par value per share, to be exchanged for shares of common stock, preferred stock and warrants to purchase common stock of MidSouth Bank (MidSouth) in connection with the Agreement and Plan of Reorganization and Bank Merger between MidSouth, the Company, and Franklin Synergy Bank, a wholly-owned subsidiary of the Company, dated as of November 21, 2013. This opinion is furnished pursuant to the requirement of Item 601(b)(5) of Regulation S-K under the Act.
We have examined the charter of the Company filed by the Company with the Tennessee Secretary of State, the bylaws of the Company, minutes of meetings of its board of directors, and such other corporate records of the Company and other documents and have made such examinations of law as we have deemed necessary for purposes of this opinion.
Based on and subject to the foregoing and to the additional qualifications set forth below, it is our opinion that the Shares that are being offered and sold by the Company pursuant to the Registration Statement, when issued by the Company as contemplated by the Registration Statement, will be legally issued, fully paid, and nonassessable.
We hereby consent to the reference to our firm in the Registration Statement under the heading Legal Matters and to the filing of this opinion as an exhibit to the Registration Statement. The consent shall not be deemed to be an admission that this firm is within the category of persons whose consent is required under Section 7 of the Act or the regulations promulgated pursuant to the Act.
Our opinion expressed above is subject to the qualification that we express no opinion as to the applicability of, compliance with, or effect of any laws other than the Tennessee Business Corporation Act.
We do not find it necessary for the purposes of this opinion, and accordingly we do not purport to cover herein, the application of the securities or Blue Sky laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. We assume no obligation to revise or supplement this opinion should the Tennessee Business Corporation Act be changed by legislative action, judicial decision or otherwise.
Very truly yours,
/s/ BAKER, DONELSON, BEARMAN,
CALDWELL & BERKOWTIZ, PC
ALABAMA FLORIDA GEORGIA LOUISIANA MISSISSIPPI TENNESSEE TEXAS WASHINGTON, D.C.
Exhibit 8.1
|
BAKER DONELSON CENTER, SUITE 800 211 COMMERCE STREET NASHVILLE, TENNESSEE 37201
MAILING ADDRESS: P.O. BOX 190613 NASHVILLE, TENNESSEE 37219
PHONE: 615.726.5600 FAX: 615.726.0464 |
|
www.bakerdonelson.com |
February 14, 2014
Franklin Financial Network, Inc.
722 Columbia Avenue
Franklin, Tennessee 37064
Re: | Franklin Financial Network, Inc. |
Registration Statement on Form S-4
Ladies and Gentlemen:
We have acted as counsel to Franklin Financial Network, Inc., a Tennessee corporation (FFN), in connection with the proposed merger (the Merger) of MidSouth Bank, a Tennessee corporation (MidSouth), with and into Franklin Synergy Bank, a Tennessee corporation and wholly owned subsidiary of FFN (FSB). The Merger is pursuant to an Agreement and Plan of Reorganization and Bank Merger executed as of November 21, 2013, by and among FFN, FSB, and MidSouth (the Merger Agreement), as described in the Registration Statement on Form S-4 in the form to be filed by FFN with the Securities and Exchange Commission (the Registration Statement). Unless otherwise indicated, each defined term has the meaning ascribed to it in the Merger Agreement.
In connection with this opinion, we have examined the Merger Agreement, the Registration Statement, and such other documents and corporate records as we have deemed necessary or appropriate for purposes of our opinion. In all our examinations, we have assumed, or will assume, the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies or drafts.
In addition, we have assumed that (i) the Merger will be consummated in the manner contemplated by the Registration Statement and in accordance with the provisions of the Merger Agreement; and (ii) the information set forth in the Registration Statement and the factual representations made to us by FFN, FSB, and MidSouth, or that will be made, in their respective letters delivered to us for purposes of our opinion are accurate and complete and will remain accurate and complete at all times up to and including the Effective Time of the Merger.
ALABAMA FLORIDA GEORGIA LOUISIANA MISSISSIPPI TENNESSEE TEXAS WASHINGTON, D.C.
Franklin Financial Network, Inc.
Exhibit 8.1 to Registration Statement
February 14, 2014
Page 2
Based solely upon the foregoing, and subject to the assumptions, qualifications and limitations stated herein, we are of the opinion that the discussion set forth in the Registration Statement under the heading Material United States Federal Income Tax Consequences of the Merger, to the extent that such discussion relates to matters of United States federal income tax law, is accurate in all material respects.
The opinion expressed herein is based upon the Internal Revenue Code of 1986, as amended (the Code), Treasury Regulations (including Temporary and Proposed Regulations) promulgated thereunder, existing judicial authority, and current administrative rulings and procedures issued by the Internal Revenue Service and the judicial and administrative interpretations thereof, each as published as of the date hereof, all of which are subject to change, with or without retroactive effect, by legislation, administrative action, or judicial decisions. In addition, our opinion is based solely on the documents that we have examined, the additional information that we have obtained, and the statements contained in the letters from FFN, FSB, and MidSouth referred to above. Our opinion cannot be relied upon if any of the facts pertinent to the Federal income tax treatment of the Merger stated in such documents or in such additional information is, or later becomes, inaccurate, or if any of the statements contained in the letters from FFN, FSB, and MidSouth referred to above are, or later become, inaccurate. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any changes (including changes that have retroactive effect) (i) in applicable law or (ii) that would cause any statement, representation or assumption herein to be no longer accurate. Finally, our opinion is limited to the tax matters specifically covered hereby, and we have not been asked to address, nor have we addressed, any other tax consequences of the Merger or any other transactions.
This opinion is being delivered to you solely for the purpose of being included as an exhibit to the Registration Statement; it may not be relied upon or utilized for any other purpose (including without limitation satisfying any conditions in the Merger Agreement) or by any other person or entity, and may not be made available to any other person or entity without our prior written consent. Notwithstanding the previous sentence, we hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and to the reference to our firm under the heading Material United States Federal Income Tax Consequences of the Merger. In giving such consent, we do not thereby admit that we are in a category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations thereunder.
Sincerely,
/s/ BAKER DONELSON BEARMAN
CALDWELL & BERKOWITZ, PC
Exhibit 10.1
RETAIL LEASE AGREEMENT
BY AND BETWEEN
WESTHAVEN TOWN CENTER FUND I, LLC,
A TENNESSEE LIMITED LIABILITY COMPANY
(LANDLORD)
AND
FRANKLIN SYNERGY BANK,
A TENNESSEE BANKING CORPORATION
(TENANT)
DATED AS OF December 21, 2011
RETAIL LEASE AGREEMENT
Schedule to Lease Agreement
The following Schedule comprises an integral part of the Lease Agreement between the Landlord and Tenant hereinafter named, dated as of the 21 day of December, 2011 (as it may be amended from time to time, the Lease ). Unless the context otherwise requires, the terms described below shall have the meanings ascribed to them and shall be governed and construed in accordance with the terms of the Lease. To the extent of any inconsistency between this Schedule, on one hand, and the body of the Lease, on the other, the body of the Lease shall control and prevail.
Landlord: | WESTHAVEN TOWN CENTER FUND I, LLC, a Tennessee limited liability company, whose address is c/o Southern Land Company, LLC, 1550 W. McEwen Drive, Suite 200, Franklin, Tennessee 37067, Attention: Mr. Timothy W. Downey, telephone: (615) 778-3150, facsimile: (615) 778-2865. | |
Tenant: | FRANKLIN SYNERGY BANK, a Tennessee banking corporation, whose address is 722 Columbia Avenue, Franklin, Tennessee 37064, telephone: (615) 236-2265, facsimile: (615) 236-8399. | |
Premises: | Approximately 2,608 rentable square feet designated as 1015 Westhaven Blvd. Suite 150 on the first floor of the building (the Building ) located on the property more particularly described on Exhibit A attached hereto and incorporated herein by reference, the Premises being more particularly described on the Floor Plan attached to the Lease as Exhibit B and incorporated herein by this reference. Notwithstanding the provision of Exhibit B , Tenant acknowledges that the size, location and configuration of the Premises within the Building may be adjusted based on the final floor plan of the Building as constructed. | |
Term: | 60 months; provided, that the Term shall be extended so that the Expiration Date is the last day of a full calendar month. | |
Renewal Term: | Subject to the provisions of Section 44 of the Lease, Tenant may extend the Term of the Lease for two (2) Extension Term(s) of sixty (60) months each. | |
Delivery Date: | Upon Completion of Landlords work as further defined in Exhibit E. | |
Commencement Date: | As set forth in Exhibit C (Workletter). | |
Expiration Date: | The conclusion of the Term. | |
Base Rent |
Per Rentable Square Foot: | Base Rent per Rentable Square Foot during the Term of the Lease shall be as follows: |
Base Rent Adjustment: | First Year Estimated at $6.57 psf | |
Proportionate Share of Building: | To be determined according to Section 5 of the Lease. | |
Total Building Rentable Area: | To be determined as set forth in Section 5 of the Lease. | |
Tenant Improvement Allowance: | $25.00 PSF of the final Rentable Area within the Premises, as determined according to Section 5 of the Lease, and subject to the terms of the Workletter. | |
Improvements: | Improvements to be made by Tenant as set forth in the Workletter at Exhibit C . | |
Security Deposit: | $10,500 to be held and applied in accordance with Section 3 of the Lease. | |
Permitted Use: | The leased Premises may be used and occupied by Tenant for the primary purposes of bank lending (both construction and consumer), as well as mortgage lending, new deposits, acceptance of deposits, ancillary services including financial advisory type services and/or products and ATM service (provided that such ancillary services shall not constitute more than 10% of Tenants business), subject to the terms of Section 11 of the Lease. | |
Broker: | None. |
2
Per Rentable Square Foot: | Base Rent per Rentable Square Foot during the Term of the Lease shall be as follows: |
Base Rent Adjustment: | First Year Estimated at $6.57 psf | |
Proportionate Share of Building: | To be determined according to Section 5 of the Lease. | |
Total Building Rentable Area: | To be determined as set forth in Section 5 of the Lease. | |
Tenant Improvement Allowance: | $25.00 PSF of the final Rentable Area within the Premises, as determined according to Section 5 of the Lease, and subject to the terms of the Workletter. | |
Improvements: | Improvements to be made by Tenant as set forth in the Workletter at Exhibit C . | |
Security Deposit: | $10,500 to be held and applied in accordance with Section 3 of the Lease. | |
Permitted Use: | The leased Premises may be used and occupied by Tenant for the primary purposes of bank lending (both construction and consumer), as well as mortgage lending, new deposits, acceptance of deposits, ancillary services including financial advisory type services and/or products and ATM service (provided that such ancillary services shall not constitute more than 10% of Tenants business), subject to the terms of Section 11 of the Lease. | |
Broker: | None. |
2
LANDLORD : | TENANT : | |||||||||
WESTHAVEN TOWN CENTER FUND I, LLC, a Tennessee limited liability company | FRANKLIN SYNERGY BANK, a Tennessee banking corporation | |||||||||
By: |
|
By: |
|
|||||||
|
|
|||||||||
Print Name: |
Tim Downey |
Print Name: |
Kevin Herrington |
|||||||
Title: |
Chief Manager |
Title: |
SVP |
|||||||
Date: | 12/21/11 , | 2011 | Date: |
12/20/11 |
3
TABLE OF CONTENTS
Page | ||||||
1. |
Term |
1 | ||||
2. |
Rent |
1 | ||||
3. |
Security Deposit |
2 | ||||
4. |
Improvements to Premises |
3 | ||||
5. |
Base Rent Adjustment |
3 | ||||
6. |
Services to be Furnished by Landlord |
5 | ||||
7. |
Common Areas |
6 | ||||
8. |
Keys, Locks and Card Keys |
6 | ||||
9. |
Graphics |
6 | ||||
10. |
Parking |
7 | ||||
11. |
Permitted Uses |
7 | ||||
12. |
Laws, Regulations, and Rules of Building |
8 | ||||
13. |
Tenants Acceptance And Maintenance Of Premises; Landlords Duties And Rights |
8 | ||||
14. |
Care of Premises |
10 | ||||
16. |
Peaceful Enjoyment |
10 | ||||
17. |
Landlords Right of Entry |
10 | ||||
18. |
Limitation of Landlords Liability |
10 | ||||
19. |
Defaults and Landlords Remedies |
10 | ||||
20. |
Remedies |
11 | ||||
21. |
Holding Over |
13 | ||||
22. |
Condemnation |
13 | ||||
23. |
Damage or Destruction to the Premises |
13 | ||||
24. |
Insurance Requirements |
15 | ||||
25. |
Subordination, Non-Disturbance and Attornment |
16 | ||||
26. |
Estoppel Letter |
17 | ||||
27. |
Hazardous Substance General |
17 | ||||
28. |
General Compliance; ADA |
18 | ||||
29. |
Lease Commission |
18 | ||||
30. |
Assignment by Landlord |
19 | ||||
31. |
Assignment or Sublease |
19 | ||||
32. |
Amendments |
19 | ||||
33. |
Binding Agreement |
19 |
i
TABLE OF CONTENTS
Page | ||||||
34. |
Counterparts |
19 | ||||
35. |
Gender |
19 | ||||
36. |
Governing Law |
20 | ||||
37. |
Entire Agreement |
20 | ||||
38. |
Severability |
20 | ||||
39. |
Notices |
20 | ||||
40. |
Business Day |
20 | ||||
41. |
Mortgagee Protection |
20 | ||||
42. |
Compliance with Federal Law |
20 | ||||
43. |
Required Hours of Operation |
21 | ||||
44. |
Renewal Option |
21 |
ii
LEASE AGREEMENT
WESTHAVEN PARTNERS, LLC, a Tennessee limited liability company ( Landlord ), agrees to lease to the Tenant set forth in the Schedule ( Tenant ), and Tenant accepts from Landlord the Premises described in the Schedule (the Premises ) in consideration of the following mutual covenants and conditions:
1. Term . This Lease shall commence upon the Commencement Date specified in the Schedule (the Commencement Date ) and shall continue until the Expiration Date specified in the Schedule (the Expiration Date ) (as the same may be extended, the Term ), subject to adjustment as set forth in the Workletter. In the event of any adjustment in the Commencement Date, the Expiration Date shall be likewise extended. In the event of any delay on the part of Landlord in making the Premises available for occupancy by Tenant that is not caused by Tenant and that does not involve work covered by a Workletter as provided in Section 4 of this Lease, the Commencement Date of the Term and the obligation of the Tenant to pay Rent (as defined in Section 2 hereof) on the Premises shall be extended to the date the Premises are ready for occupancy by the Tenant, and the Expiration Date shall be likewise extended. Upon final determination of the Commencement Date and Expiration Date, Landlord and Tenant shall enter into a Commencement Agreement in the form attached hereto as Exhibit D .
Tenant shall have the right and option to renew the Lease (the Renewal Option ) for two (2) additional period(s) of five (5) years (each a Renewal Term ): provided, however, such Renewal Option is contingent upon the following (i) no Event of Default has occurred and is continuing at the time Tenant gives Landlord notice of Tenants intention to exercise the Renewal Option; (ii) upon the Expiration Date of the initial five (5) year Term or the first Renewal Term, as the case may be, Tenant has no outstanding Event of Default and no event has occurred that upon notice or the passage of time would constitute an Event of Default; and (iii) Tenant is occupying the Premises
2. Rent .
(a) Tenant shall pay an annual base rental based on the base rent per rentable square foot amount specified in the Schedule ( Base Rent ), in twelve equal monthly installments. Each installment of such Base Rent, together with one-twelfth (1/12) of the Base Rent Adjustment (as defined in Section 5(d) hereof) shall be due and payable in advance, without notice, demand, reduction, setoff or any defense, on the first day of each calendar month during the Term of this Lease. Final Base Rent to be based on the Rentable Area pursuant to Section 5 of the Lease.
(i) As used herein, the term Lease Year shall, in the case of the first Lease Year, mean the period which commences with the Occupancy Date and terminates on the last day of the twelfth (12th) full calendar month after the Occupancy Date, and such first Lease Year shall, therefore, include twelve (12) full calendar months plus the partial month, if any, at the Occupancy Date, if the Term does not commence on the first day of a calendar month. Each subsequent Lease Year shall mean a period of twelve (12) full calendar months commencing with the date following the last day of the first Lease Year, and commencing with each subsequent annual anniversary of such day. The last Lease Year of the Term shall be the period that commences on the day immediately following the last day
of the preceding Lease Year and terminates on the last day of the Term, and the parties recognize that such last Lease Year may be less than twelve (12) full calendar months, depending upon the date of termination of the lease term.
(b) Tenant shall also pay Landlord as additional rent all such other sums of money as shall become due from and payable by Tenant to Landlord under this Lease (the Additional Rent ). Base Rent, the Base Rent Adjustment, Additional Rent and any and all other amounts due hereunder shall be collectively referred to herein as the Rent . All Rent shall be payable to Landlord at the address set forth on the Schedule unless Landlord shall provide Tenant written notice of a new address for the delivery of Rent pursuant to Section 39 hereof. Tenant shall pay to Landlord as Additional Rent any sales, use or other tax (excepting corporate excise and income tax) that may be levied upon or in any way measured by this Lease or the rents payable by Tenant, notwithstanding the fact that a statute, ordinance or enactment imposing the same may endeavor to impose such tax upon Landlord. If the Term of this Lease commences on any day other than the first day of a calendar month or terminates on any day other than the last day of a calendar month, then the Rent for such month or months shall be prorated. Any payment of Rent not received by Landlord within ten (10) days of the date when due shall be deemed delinquent and Tenant shall pay to Landlord on demand a late charge equal to five percent (5%) of the amount of such Rent. Tenant acknowledges that such late charge is not a penalty, but is to compensate Landlord for the additional administrative expenses and other expenses incurred by Landlord in handling delinquent payments (which expenses are not readily ascertainable), and is in addition to, not in lieu of, interest on late payments as provided herein and any other remedies that Landlord may have by virtue of Tenants failure to make payments when due. Rent or other payments due hereunder, if not paid when due, shall bear interest at a rate equal to the lesser of twelve percent (12%) per annum or the maximum lawful rate of interest chargeable under the laws of the State of Tennessee, from the date due until paid. In addition, Tenant shall pay to Landlord all costs of collection of the sums due hereunder including reasonable attorney fees. In the event Tenant provides a check in payment of Rent or any other amount due under this Lease, and such check is dishonored for any reason, Tenant shall pay, in addition to any other charge or payment, a dishonored check charge in the amount of Thirty-Five Dollars ($35.00).
3. Security Deposit . Landlord acknowledges that Tenant has deposited with Landlord the Security Deposit referenced in the Schedule (the Security Deposit ), and Landlord may apply the Security Deposit to any delinquent Rent due Landlord under this Lease. Tenant shall not be entitled to interest on the Security Deposit, and Landlord may commingle the Security Deposit with other funds of Landlord. Furthermore, Landlord at its option may apply such part of the Security Deposit as may be necessary to cure any default by Tenant under this Lease, and if Landlord does so, Tenant shall, upon demand, redeposit with Landlord an amount equal to that amount so applied so that Landlord will have the full Security Deposit on hand at all times during the Term of this Lease. Upon the termination of this Lease, provided Tenant is not in default hereunder, Landlord shall refund to Tenant any of the then remaining balance of the Security Deposit without interest. In the event of a sale or leasing of the Building referenced in the Schedule (the Building ) or the real property on which the Building is located, Landlord shall have the right to transfer the Security Deposit to the vendee or lessee and Landlord shall thereupon be released by Tenant from all liability for the return of the Security Deposit and Tenant agrees to look to the new lessor solely for the return of the Security Deposit. The provisions hereof shall apply to every transfer or assignment made of the Security Deposit to a new lessor.
2
4. Improvements to Premises .
(a) Landlord shall deliver the Premises to Tenant in a Shell Condition. For purposes of this Lease, Shell Condition shall mean that the Premises have been constructed according to the requirements set forth on Exhibit E attached hereto and incorporated herein by this reference. The delivery of the Premises, and any revisions to the Commencement Date resulting from such improvements, shall be governed by the provisions of the Workletter attached as Exhibit C to this Lease and incorporated herein by this reference. Tenant shall not install improvements in the Premises reasonably determined by Landlord to be special or non-standard, including without limitation (a) all wiring and cabling from the point of origin to the termination point, (b) raised floors for computer or communication systems, (c) telephone equipment, security systems and uninterruptible power supplies, (d) equipment racks and (e) any other non-standard alteration, fixture or equipment. Landlord may require Tenant to remove such special or non-standard improvements and restore the Premises at Tenants sole cost and expense upon the termination of this Lease. Landlord, however, may elect to require Tenant to leave alterations performed for Tenant unless at the time of the installation of such alterations Landlord agreed in writing such alterations could be removed on the Expiration Date, upon the termination of this Lease or upon Tenants vacation of the Premises.
(b) Except for the Tenant Improvements as set forth in the Workletter, Tenant shall make no structural, exterior or interior alterations of the Premises without Landlords written consent. If Tenant requires alterations, Tenant shall provide Landlord with a complete set of construction drawings, which Landlord shall have the right to approve in writing in Landlords discretion within a reasonable amount of time after Landlords receipt of such drawings. All alterations and other construction work performed within the Premises shall be subject to the provisions of the Workletter regarding the obligations of Tenant and Tenants contractor.
5. Base Rent Adjustment . The Base Rent Adjustment shall be calculated and paid as follows:
(a) Rentable Area shall be the Rentable Square Feet in the Premises and the Building determined upon delivery of the Premises in their Shell Condition, based on the ANSI/BOMA Standard Z65.1-1996 and shall be set forth in the Commencement Agreement.
(b) Operating Costs shall mean all operating expenses of the Building and all Common Areas (as defined in Section 7 hereof) as computed on the accrual basis in accordance with generally accepted accounting principles consistently applied and shall include all expenses, costs and disbursements (but not payments of principal and interest on notes secured by deeds of trust on the Building and Common Areas, capital investment items related to the initial construction of the Building and Common Areas and replacements thereof, or costs specially billed to specific tenants) of every kind and nature that Landlord shall pay or become obligated to pay because of or in connection with the ownership, operation, maintenance and repair of the Building or Common Areas, including but not limited to, the following:
(i) Wages, salaries, taxes, insurance and benefits directly attributable to all employees engaged in operating, maintaining or providing security for the Common Areas and to personnel who may provide traffic control relating to ingress and egress between the parking areas and adjacent public streets.
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(ii) All supplies and materials used in operation and maintenance of the Common Areas.
(iii) Utilities for the Common Areas, including water, power, heating, lighting, air conditioning and ventilation.
(iv) Maintenance, janitorial, security, and service agreements for the Common Areas and the equipment therein.
(v) Building property coverage, general liability, and rent loss insurance applicable to the Building and Common Areas and Landlords personal property used in connection therewith including a proportionate share attributable to the Building of any umbrella liability coverage held by Landlord or its affiliates.
(vi) Taxes, assessments and governmental charges attributable to the Building and all Common Areas.
(vii) Repairs and general maintenance (excluding repairs and general maintenance paid by proceeds of insurance or by Tenant or other third parties).
(viii) Amortization of the cost of installation of capital investment items that are primarily for the purpose of reducing Operating Costs or that may be required by governmental authority or the passage of new laws, regulations or requirements.
(ix) Landlords accounting costs attributable to the Building.
(x) Fees paid by Landlord for management of the Building.
(xi) Legal, consultants, appraisers and auditing fees incurred in connection with an appeal for reduction of taxes or for other management purposes directly incurred in the operation of the Building and all Common Areas.
(xii) Amounts paid to any owners association or other association to which the Building or Landlord is subject, including without limitation any expenses for landscape maintenance, community activities or common services.
(c) Tenants Proportionate Share shall mean a fraction, the numerator of which is the total number of Rentable Square Feet within the Premises and the denominator of which is the greater of (i) ninety-five percent (95%) of the total square footage of all Rentable Square Feet in the Building held for lease, or (ii) the total square footage of all Rentable Square Feet in the Building actually leased for rent paying tenants.
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(d) For each calendar year during the Term (or during any fractional part of a calendar year, with Tenants obligation in such case to be prorated), Tenant shall pay an amount equal to Tenants Proportionate Share of the Operating Costs for such calendar year (the Base Rent Adjustment ). For this purpose, Landlord may estimate the amount of the Operating Costs for each calendar year or portion thereof during the Term, and Tenants Rent shall be increased by Tenants Proportionate Share of such estimated amount (the Estimated Base Rent Adjustment ). Said Estimated Base Rent Adjustment shall be divided by twelve and paid to Landlord as Additional Rent monthly on the same day the Base Rent is due and payable. If the Building is not at least ninety-five percent (95%) occupied during any calendar year, Tenants Proportionate Share of actual Operating Costs and estimated Operating Costs shall be calculated as if the Building had been ninety-five percent (95%) occupied during each such calendar year.
(e) Within one hundred fifty (150) days or as soon thereafter as may be reasonably practicable after the conclusion of each calendar year during the Term, Landlord shall furnish to Tenant a report describing the actual amount of Operating Costs for such calendar year and the actual Base Rent Adjustment. A lump sum payment shall be made by Landlord to Tenant or by Tenant to Landlord, as appropriate, within thirty (30) days after the delivery of such report equal to the amount of any difference between the actual Base Rent Adjustment payable by Tenant pursuant to this Section 5 and the Estimated Base Rent Adjustment paid to Landlord by Tenant for the calendar year in question. For a ninety (90) day period following the giving of such report, Landlord shall afford Tenant reasonable access to Landlords books and records with respect to Operating Costs to enable Tenant to verify the amount of Operating Costs that are the basis for the computation of the actual Base Rent Adjustment and the actual amount of the difference to be paid by Tenant or Landlord, as applicable; or, in lieu of such right of inspection, Landlord may, in its sole discretion, provide Tenant with an audit of Landlords books and records with respect to Operating Costs prepared by an independent certified public accountant.
(f) Controllable Operating Costs charged to Tenant shall not exceed 105% of the Controllable Operating Costs charged to Tenant in the immediately preceding Lease Year. As used in this Section 5(f), Controllable Operating Costs shall mean all Operating Costs other than taxes, utilities, insurance, and any other cost or expense beyond Landlords reasonable control.
6. Services to be Furnished by Landlord .
(a) Provided that Tenant is not then in default, Landlord shall cause to be furnished to the Building, or as applicable, the Premises, in common with other tenants of the Building, the following services:
(i) Electrical service shall be brought to a central location at the perimeter of the building in which the Premises is located. Landlord to provide and install disconnect and meter socket assembly for 200 amp service for Tenants meter. Landlord shall provide an empty conduit (but not cable or wire) sized for 200 amp service from a central location to the rear of the Premises.
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(ii) Lighting, heating, cleaning, landscaping and maintenance of all Common Areas consistent with the standard within the Westhaven Town Center.
(iii) Maintenance and replacement as necessary for the heating, ventilation and air conditioning ( HVAC ) for the Premises; provided, however, that all such maintenance on the HVAC units providing service to the Premises shall be at Tenants sole expense, the cost thereof to be passed back to Tenant as Additional Rent payable within thirty (30) days of demand therefor.
(b) Failure by Landlord to any extent to furnish the services described in this Section 7 , or any cessation thereof, resulting from the repair or alteration of the Building or causes beyond the reasonable control of Landlord shall not be construed as an eviction of Tenant, nor allow Tenant an abatement of Rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
7. Common Areas . During the Term and as so long as Tenant is not in default hereunder, Landlord grants Tenant a non-exclusive license to use and occupy in common with others so entitled the common areas of the Building, including, but not limited to, corridors, stairways, elevators, restrooms, lobbies, entranceways, parking areas, service roads, sidewalks and other facilities as may be designated as common areas from time to time by Landlord (collectively the Common Areas ), subject to the terms and conditions of this Lease. Landlord shall have the right to expand, reduce or alter the Common Areas from time to time.
8. Keys, Locks and Card Keys . Landlord shall furnish Tenant with two (2) keys for each door directly entering the Premises and two (2) card keys (if applicable) to the Building. Additional keys will be furnished at a charge by Landlord on an order signed by Tenant or Tenants authorized representative. All such keys shall remain the property of Landlord. No additional locks shall be allowed on any door of the Premises nor shall Tenant change the locks without Landlords permission, and Tenant shall not make, or permit to be made any duplicate keys, except those furnished by Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord all keys and card keys of the Premises and give to Landlord the explanation of the combination of all locks for safes, safe cabinets and vault doors, if any, installed in the Premises by Tenant.
9. Graphics .
(a) Landlord shall provide and install, at Landlords cost, all letters or numerals on entrance doors to the Premises, identifying the address/suite number of the Premises. All such letters and numerals shall be in the Building standard graphics, and no others shall be used or permitted on the Premises. All other signs and graphics shall be as set forth in the Workletter.
(b) Landlord has attached to this Lease as Exhibit G a copy of the sign guidelines applicable to the Building (the Guidelines ). Tenant, at Tenants sole cost and expense, shall be entitled to install exterior building signage subject to the Guidelines and any and all laws, ordinances and regulations, and with the prior approval of Landlord as to location. Tenant shall be responsible for removal of such signage on termination of this Lease, at Tenants sole expense.
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10. Parking . Tenant shall have the right to use in common with the other tenants in the Building the parking spaces provided by Landlord adjacent to the Building for parking of Tenants automobiles and those of its employees and visitors, subject to the Rules and Regulations attached hereto as Exhibit D and incorporated herein by this reference (as they may be amended from time to time by Landlord, the Rules and Regulations ). Tenant shall not use nor permit any of its employees, agents or visitors to use any parking area owned by Landlord other than the parking area adjacent to and assigned to the Building. If Landlord deems it advisable, Landlord may set aside a part of the total parking field for use as a separate area for visitors. Landlord reserves the right to adopt any regulations necessary to curtail unauthorized parking, including the required use of parking permits.
11. Permitted Uses .
(a) Tenant shall use and occupy the Premises for the Permitted Use specified in the Schedule and for no other purpose; provided, however Tenant shall not occupy or use, or permit any portion of the Premises to be occupied or used for any business or purpose which is unlawful, disreputable or deemed to be extra-hazardous on account of fire, or permit anything to be done which would in any way increase the rate of fire or liability or any other insurance coverage on the Building and/or its contents, cause the load upon any floor of the Building to exceed the load for which the floor was designed or the amount permitted by law, or use electrical energy exceeding the capacity of the then existing feeders or wiring installations. Tenant shall further conduct its business and control its agents, employees, invitees, and visitors in such manner as not to create any nuisance, or interfere with, annoy or disturb any other tenant or Landlord in its operation of the Building.
(b) Without limiting the foregoing, Tenant acknowledges that Landlord has granted certain exclusive rights and privileges to other tenants and owners within the Westhaven Town Center, and may grant additional exclusive rights from time to time. No such exclusive uses shall prevent Tenant from pursuing the Permitted Use. Tenant acknowledges and agrees to abide by such exclusives, which may now or hereafter be set forth in the declarations and covenants applicable to the Westhaven Town Center, the Building or the land on which the Building is located, or may be otherwise set forth. Landlord shall provide to Tenant on Tenants request a list of current exclusives.
(c) Without limiting the generality of Sections 11(a) and 11(b) above, Tenant agrees that it shall not use the Premises for any of the following purposes:
(i) Bar, tavern or billiard hall;
(ii) Pawn shop;
(iii) Dance studio or karate studio;
(iv) Beer or wine-making;
(v) Adult video/adult entertainment;
(vi) Off-track betting establishment;
(vii) Abortion/drug rehabilitation offices/facilities;
(viii) Alcohol/drug rehabilitation offices/facilities;
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(ix) Psychological counseling offices/facilities;
(x) Unemployment or Social Security offices;
(xi) Liquor store;
(xii) Nail salon; or
(xiii) investment brokerage, insurance sales and related financial services (except in accordance with the terms of that certain waiver letter, executed by Edward D. Jones & Co., attached hereto as Exhibit H ).
(d) So long as Tenant is open and operating its business in the Premises, Landlord shall not lease or sell any portion of Westhaven Town Center to any business whose primary use is banking or lending. The requirements of this Section 11(d) shall not apply to any current tenants or occupants of Westhaven Town Center on the date of this Lease other than Churchill Mortgage or any agent of Churchill Mortgage. No later than thirty (30) days prior to Tenants opening for business in the Premises, Landlord will terminate its relationship with Churchhill Mortgage and any agents of Churchill Mortgage such that Churchill Mortgage will no longer be a tenant or occupant of Westhaven Town Center at the time of Tenants opening for business in the Premises.
12. Laws, Regulations, and Rules of Building . Tenant at Tenants expense shall comply with the Rules and Regulations and all applicable laws and ordinances relating to the use, condition or occupancy of the Premises and all Common Areas and all rules and regulations of all governmental authorities and all insurance bodies at any time in force and applicable to the Premises or to the Tenants use thereof. Tenant shall comply with reasonable rules and regulations as may be adopted or altered by Landlord from time to time for the safety, care and cleanliness of the Premises, Building and Common Area and for preservation of good order therein after receiving notice thereof, including, but not limited to, the Rules and Regulations.
Without limiting the foregoing, Tenant acknowledges that the Building is located in a master-planned community that is subject to a master deed, one or more declarations of covenants and other restrictions, and community governance via an owners or other association, whether one or more. Tenant acknowledges that this Lease is subject to such restrictions, whether of record or not, and that Landlords costs and expenses in complying with such governance shall be appropriately charged to the Building. Tenant further agrees to comply with all such restrictions or other requirements.
13. Tenants Acceptance and Maintenance of Premises; Landlords Duties And Rights .
(a) Tenants occupancy of the Premises is Tenants representation to Landlord that Tenant has examined and inspected the same, finds the Premises to be as represented by Landlord and satisfactory for Tenants intended use, and constitutes Tenants acceptance as is. Except as set forth in the Workletter, if any, Landlord makes no representation or warranty as to the condition of the Premises. During Tenants move-in, a representative of Tenant must be on-site with Tenants moving company to insure proper treatment of the Building and the Premises. Elevators in multi-story office buildings must remain in use for the general public during the hours as defined herein in Section 6 hereof. Any specialized use of elevators must be coordinated with Landlords property manager. Tenant must properly dispose of all packing material and refuse in accordance with the Rules and Regulations. Any damage or destruction to the Building or the Premises due to
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moving will be the sole responsibility of Tenant. Tenant shall deliver at the end of this Lease each and every part of the Premises in good repair and condition, ordinary wear and tear and damage by casualty excepted. The delivery of a key or other such tender of possession of the Premises to Landlord or to an employee of Landlord shall not operate as a termination of this Lease or a surrender of the Premises except upon written notice by Landlord. Tenant shall: (i) keep the Premises and fixtures in good order and repair; (ii) make repairs and replacements to the Premises, Building, or drive through facilities needed because of Tenants misuse or primary negligence; (iii) repair and replace special equipment or decorative treatments installed by or at Tenants request and that serve the Premises only, except if this Lease is ended because of casualty loss or condemnation; and (iv) not commit waste. For purposes of Tenants maintenance obligations under this Section 13, the Premises shall be deemed to include, without limitation, Tenants drive through facilities.
(b) Tenant shall keep the Premises and the Building free from any liens arising out of any work performed, materials furnished, or obligations incurred by or on behalf of Tenant. Should any claim of lien or other lien be filed against the Premises or the Building by reason of any act or omission of Tenant or any of Tenants agents, employees, contractors or representatives, then Tenant shall cause the same to be canceled and discharged of record by bond or otherwise within ten (10) days after the filing thereof. Should Tenant fail to discharge such lien within such ten (10) day period, then Landlord may discharge the same, in which event Tenant shall reimburse Landlord, on demand, as Additional Rent, for the amount of the lien or the amount of the bond, if greater, plus all administrative costs incurred by Landlord in connection therewith. The remedies provided herein shall be in addition to all other remedies available to Landlord under this Lease or otherwise. Tenant shall have no power to do any act or make any contract that may create or be the foundation of any lien, mortgage or other encumbrance upon the reversionary or other estate of Landlord, or any interest of Landlord in the Premises. NO CONSTRUCTION LIENS OR OTHER LIENS FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED TO THE PREMISES SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE BUILDING.
(c) Notwithstanding anything to the contrary set forth above in this Section 13 , if Tenant does not perform its maintenance obligations in a timely manner as set forth in this Lease, commencing the same within five (5) days after receipt of notice from Landlord specifying the work needed and thereafter diligently and continuously pursuing completion of unfulfilled maintenance obligations, then Landlord shall have the right, but not the obligation, to perform such maintenance, and any amounts so expended by Landlord shall be paid by Tenant to Landlord within thirty (30) days after demand, with interest at the maximum rate allowed by law (or the rate of twelve percent (12%) per annum, whichever is less) accruing from the date of expenditure through the date paid.
(d) Except for repairs and replacements that Tenant must make under this Section 13 , Landlord shall pay for and make all other repairs and replacements to the common areas and Building (including Building fixtures and equipment). This maintenance shall include the roof, foundation, exterior walls, interior structural walls, all structural components, and all exterior (outside of walls) systems, such as mechanical, electrical, HVAC, and plumbing; provided, however, Landlords failure to make such repairs shall not relieve Tenant of the obligation to pay all Rent due under this Lease.
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Repairs or replacements required under this Section 13(d) shall be made within a reasonable time (depending on the nature of the repair or replacement needed) after receiving notice from Tenant or Landlords having actual knowledge of the need for a repair or replacement.
14. Care of Premises . Tenant shall not commit or allow any waste or damage to be committed on any portion of the Premises, and at the termination of this Lease, Tenant shall deliver possession of the Premises to Landlord in as good condition as at date of possession by Tenant, or as the same may have been improved during the term, ordinary wear and tear or damage resulting from casualty excepted.
15. Utilities . Tenant will pay for the connection and provision of utilities, including electric, water, gas, and all other utilities, used by and/or serving the Premises.
16. Peaceful Enjoyment . Tenant shall have the right to peacefully occupy, use and enjoy the Premises during the Term, subject to the other terms hereof, provided Tenant pays the Rent and other sums herein required to be paid by Tenant and performs all of Tenants covenants and agreements herein contained.
17. Landlords Right of Entry . Landlord or its agents or representatives shall have the right to enter into and upon any part of the Premises at all reasonable hours to inspect the same, clean or make repairs, alterations or additions thereto, as Landlord may deem necessary or desirable. Landlord shall not have access to any vault, cash locker, or telephone/computer room without Tenants prior written consent. Landlord further reserves the right to show the Premises to prospective tenants or brokers during the last six (6) months of the Term as extended, and to prospective purchasers or mortgagees at all reasonable times, provided prior notice is given to Tenant in each case, and Tenants use and occupancy of the Premises shall not be materially inconvenienced. Tenant shall not be entitled to any abatement or reduction of Rent by reason of the exercise of the foregoing rights on the part of Landlord.
18. Limitation of Landlords Liability . Landlords liability to Tenant shall be limited as follows:
(a) In no event shall Landlord or Landlords manager be liable or responsible to Tenant for lost profits, business interruption or any other type of incidental, consequential, or special damages caused by the making of repairs or alterations to the Premises, the Building, or Common Area, failure to provide or interruption of services, failure to make repairs, injury to person or property, or otherwise.
(b) All separate and personal liability of Landlord or any affiliate thereof of every kind or nature, if any, is hereby expressly waived by Tenant, and by every person now or hereafter claiming by, through, or under Tenant; and Tenant shall look solely to Landlords interest in the Building and the proceeds of any insurance maintained by Landlord in connection with the Building for the payment of any claim against Landlord.
19. Defaults and Landlords Remedies . The occurrence of any one or more of the following events shall constitute an event of default (individually, an Event of Default and, collectively, Events of Default ) hereunder:
(a) if Tenant shall fail to make any payment of Rent due and payable by Tenant under this Lease within ten (10) days after the same becomes due and payable; or
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(b) if Tenant (or, if applicable, any subtenant, licensee, assignee or other occupant) shall fail to observe or perform any other term, covenant or condition of this Lease on its part to be performed, and such failure is not cured by Tenant (or, if applicable, by such subtenant, licensee, assignee or occupant) within a period of thirty (30) days after Tenants receipt of written notice thereof from Landlord, unless such failure cannot with due diligence be cured within a period of thirty (30) days, in which case such failure shall not be deemed to continue if Tenant initiates such cure with the thirty-day period and proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof as soon as reasonably possible but in no event more than ninety (90) days after such notice, or
(c) if Tenant shall:
(i) admit in writing its inability to pay debts generally as they become due,
(ii) file a petition in bankruptcy or a petition to take advantage of any insolvency law,
(iii) make an assignment for the benefit of its creditors,
(iv) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property, or
(v) file a petition or answer seeking reorganization or arrangement under the Federal bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof, or
(d) If Tenant shall be finally liquidated or dissolved, or shall begin proceedings towards such liquidation or dissolution, or shall have filed against it a petition or other proceeding to cause it to be liquidated or dissolved and such proceeding is not dismissed within thirty (30) days thereafter, or
(e) If Tenant shall abandon the Premises, cease active and continuing commercial operations within the Premises, or otherwise fail to occupy the Premises for the Permitted Use stated herein.
20. Remedies . If an Event of Default shall have occurred and be continuing past any applicable grace period, Landlord shall have the right, at its election, then or at any time thereafter, to pursue any one or more of the following remedies, in addition to any remedies which may be permitted by law or by other provisions of this Lease, without further notice or demand, except as hereinafter provided:
(a) Landlord may terminate this Lease by written notice to Tenant, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy that Landlord may have for possession or arrearages in rent (including any late charge or interest which may have
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accrued pursuant to this Lease), enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof. In addition, Tenant agrees to pay to Landlord the amount of all reasonable loss and damage which Landlord may suffer by reason of any termination effected pursuant to this subsection (a) , said loss and damage to be determined by either of the following alternative measures of damages:
(i) Until Landlord is able, through reasonable efforts, to relet the Premises, Tenant shall pay to Landlord on or before the first day of each calendar month, the monthly Base Rent, Additional Rent and other charges provided in this Lease. After the Premises have been relet by Landlord, Tenant shall pay to Landlord on the 20th day of each calendar month the difference between the monthly Base Rent, Additional Rent and other charges provided in this Lease for such calendar month and that actually collected by Landlord for such month. If it is necessary for Landlord to bring suit in order to collect any deficiency from Tenant, Landlord shall have a right to allow such deficiencies to accumulate and to bring an action on several or all of the accrued deficiencies at one time. Any such suit shall not prejudice in any way the right of Landlord to bring a similar action for any subsequent deficiency or deficiencies. Any amount collected by Landlord from subsequent tenants for any calendar month, in excess of the monthly Base Rent, Additional Rent and other charges provided in this Lease, shall be credited to Tenant in reduction of Tenants other charges provided in this Lease; but Tenant shall have no right to such excess other than the above-described credit.
(ii) When Landlord desires, Landlord may demand a final settlement. Upon demand for a final settlement, Landlord shall have a right to, and Tenant hereby agrees to pay, the difference between the total of all Base Rent, Additional Rent and other charges provided in this Lease for the remainder of the Term and the reasonable rental value of the Premises for such period, such difference to be discounted to present value at a rate equal at the rate of six percent (6%) per annum).
(iii) A reletting for a term longer than the then remaining Lease Term shall not constitute an acceptance by Landlord of a surrender of this Lease or a waiver of any Landlords rights hereunder. Landlord shall not be required to accept any tenant offered by Tenant or to observe any instructions given by Tenant about such reletting.
(iv) It is further agreed that, in addition to payments required pursuant to subsection (i) , Tenant shall compensate Landlord for all expenses incurred by Landlord in repossession, all reasonable expenses incurred by Landlord in reletting (including, among other expenses, repairs, remodeling, replacements, advertisements and brokerage fees), and all losses incurred by Landlord as a direct result of Tenants default.
(b) Bring action for recovery of all amounts due from Tenant; or
(c) Pursue any other remedy available in law.
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Any property which may be removed from the Premises by the Landlord pursuant to the authority of this Lease or of law, to which Tenant is or may be entitled, may be handled, removed or stored by Landlord at the risk, cost and expense of Tenant, and Landlord shall in no event be responsible for the value, preservation or safe-keeping thereof. Tenant shall pay to Landlord, upon demand, any and all expenses incurred in such removal and all storage charges against such property so long as the same shall be in Landlords possession or under Landlords control. Any such property of Tenant not retaken from storage by Tenant within sixty (60) days after the end of the Term, however terminated, shall be conclusively presumed to have been conveyed by Tenant to Landlord under this Lease as a bill of sale.
In the event Tenant defaults in the performance of any of the terms, covenants, agreements or conditions contained in this Lease and Landlord places the enforcement of this Lease, or any part thereof, or the collection of any rent due, or to become due hereunder or recovery of the possession of the Premises in the hands of an attorney, or files suit upon the same, Tenant agrees to pay Landlords reasonable attorneys fees and costs.
(d) Failure of Landlord to declare any Event of Default immediately upon occurrence thereof, or delay in taking any action in connection therewith, shall not waive such Event of Default, but Landlord shall have the right to declare any such Event of Default at any time and take such action as might be lawful or authorized hereunder, either at law or in equity.
21. Holding Over . If Tenant retains possession of the Premises or any part thereof after the termination of this Lease, Tenant shall pay Rent (including Base Rent and the Base Rent Adjustment) at double the rate payable on the month preceding such holding over computed on a daily basis for each day that Tenant remains in possession. In addition thereto, Tenant shall be liable for and pay to Landlord, all damages, consequential as well as direct, sustained by reason of Tenants holding over.
22. Condemnation . If the Premises shall be partially taken or condemned for any public purpose to such an extent as to render a portion of the Premises untenantable, the Rent shall abate as to the portion rendered untenantable. In the event the whole of the Premises shall be so taken or condemned, this Lease shall terminate as of the date of taking of possession. All proceeds from any taking or condemnation of the Premises shall belong to and be paid to Landlord.
23. Damage or Destruction to the Premises .
(a) If the Building or Premises are damaged by fire or other casualty ( Casualty ), then, unless the Lease is terminated as provided in this Section 23 , Landlord shall repair and restore the Building to substantially the same condition immediately prior to such Casualty and the Premises to the Shell Condition, subject to the following terms and conditions:
(i) The Casualty must be insured under Landlords insurance policies, and Landlords obligation is limited to the extent of the insurance proceeds received by Landlord. Landlords duty to repair and restore the Premises shall not begin until receipt of the insurance proceeds.
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(ii) Landlords lender(s) must permit the insurance proceeds to be used for such repair and restoration.
(iii) Landlord shall have no obligation to repair and restore the Premises beyond the Shell Condition. Without limiting the foregoing, Landlord shall have no obligations to restore or replace Tenants trade fixtures, decorations, signs, contents, or any non-standard improvements to the Premises.
(b) Unless the Lease is terminated as provided in this Section 23 , Tenant shall promptly repair, restore, or replace Tenants property. All repair, restoration or replacement of Tenants property shall be at least to the same condition as existed prior to the Casualty.
(c) Landlord shall have the option of terminating the Lease following the Casualty if: (i) the Premises is rendered wholly untenantable; (ii) the Premises is damaged in whole or in part as a result of a risk which is not covered by Landlords insurance policies; (iii) Landlords lender does not permit a sufficient amount of the insurance proceeds to be used for restoration purposes; (iv) the Premises is damaged in whole or in part during the last two years of the Term; or (v) the Building containing the Premises is damaged (whether or not the Premises are damaged) to an extent of fifty percent (50%) or more of the fair market value thereof. If Landlord elects to terminate this Lease, then it shall give notice of the cancellation to Tenant within sixty (60) days after the date of the Casualty. Tenant shall vacate and surrender the Premises to Landlord within fifteen (15) days after receipt of the notice of termination.
(d) Tenant shall have the option of terminating the Lease if: (i) Landlord has failed to substantially restore the damaged Building or the Shell Condition of the Premises within one hundred eighty (180) days of the Casualty (the Restoration Period ); (ii) the Restoration Period has not been delayed by force majeure; and (iii) Tenant gives Landlord notice of the termination within fifteen (15) days after the end of the Restoration Period (as extended by any force majeure delays). If Landlord is delayed by force majeure, then Landlord must provide Tenant with notice of the delays within fifteen (15) days of the force majeure event stating the reason for the delays and a good faith estimate of the length of the delays.
(e) If the Premises are rendered wholly untenantable by the Casualty, then the Rent payable by Tenant shall be fully abated. If the Premises are only partially damaged, then Tenant shall continue the operation of Tenants business in any part not damaged to the extent reasonably practicable from the standpoint of prudent business management, and Rent and other charges shall be abated proportionately to the portion of the Premises rendered untenantable. The abatement shall be from the date of the Casualty until sixty (60) days after delivery to Tenant of the Premises in their Shell Condition, or until Tenants business operations are restored in the entire Premises, whichever shall first occur. However, if the Casualty is caused by the negligence or other wrongful conduct of Tenant or of Tenants subtenants, licensees, contractors, or invitees, or their respective agents or employees, there shall be no abatement of Rent. The abatement of the Rent set forth above, and the right to terminate the Lease set forth in Section 23(d) , are Tenants exclusive remedies against Landlord in the event of a Casualty.
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24. Insurance Requirements .
(a) As part of the Operating Costs, Landlord shall keep the Building, including the Common Areas, insured against damage and destruction by perils insured by the equivalent of ISO Special Form Property Insurance in the amount of the full replacement value of the Building. All insurance required to be maintained by Landlord under this Section 24(a) shall be effected by valid and enforceable policies issued by insurance companies licensed to do business in the state in which the Premises are located with a general policyholders ratings of at least A- and a financial rating of at least VIII in the most current Bests Insurance Reports available on the Commencement Date, or if the Bests ratings are changed or discontinued, the parties shall agree to a comparable method of rating insurance companies. On or before the Commencement Date, and upon reasonable request thereafter, Landlord shall provide to Tenant evidence of the insurance required by this Section 24(a) on ACORD form 27 (or better).
(b) Throughout the Term, Tenant, at its sole cost and expense, shall keep or cause to be kept for the mutual benefit of Landlord, Landlords mortgagee, Landlords managing agent and Tenant (i) Commercial General Liability Insurance (1986 ISO Form or its equivalent) in the amount of One Million and No/100 Dollars ($1,000,000.00) per occurrence and Two Million and No/100 Dollars ($2,000,000.00) general aggregate, which policy shall insure against claims for bodily injury, death or property damage occurring in, on or about the Premises, and (ii) Fire Damage Liability in the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00), which policy shall insure against claims for property damage occurring in, on or about the Premises. Not more frequently than once every three (3) years, Landlord may require the limits of Tenants liability insurance to be increased if in Landlords reasonable judgment (or that of Landlords mortgagee) the coverage is insufficient. All insurance required to be maintained by Tenant under this paragraph shall (1) be effected by valid and enforceable policies issued by insurance companies licensed to do business in the state in which the Premises are located with a general policyholders ratings of at least A- and a financial rating of at least VIII in the most current Bests Insurance Reports available on the Commencement Date, or if the Bests ratings are changed or discontinued, the parties shall agree to a comparable method of rating insurance companies, (2) name Landlord, Landlords mortgagee, and Landlords managing agent as an additional insured, (3) state that such insurance shall not be canceled, non-renewed or coverage materially reduced unless thirty (30) days advance written notice is provided to Landlord, and (4) be maintained during the entire Term. On or before the Commencement Date, and upon reasonable request thereafter, Tenant shall provide evidence of the insurance required by this paragraph on a form acceptable to Landlord. If Tenant fails to provide Landlord with such certificates or other evidence of insurance coverage during the forty-five (45) day period following Landlords written demand for same, Landlord may obtain such coverage and Tenant shall reimburse the cost thereof on demand.
(c) Each party shall keep its personal property and trade fixtures in the Premises and Building insured with the equivalent of ISO Special Form Property Insurance in the amount of the full replacement cost of the property and fixtures. Tenant shall also keep any improvements to the Premises above the Shell Condition insured to the same degree as Tenants personal property. Landlord shall not be responsible for and shall not be obligated to insure against any loss of or damage to any of Tenants property described in this Section 24(c) . Tenant shall not be responsible for and shall not be obligated to insure against any loss of or damage to any of Landlords property described in this Section 24(c) .
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(d) All policies of insurance required hereunder shall contain language or certificates to the extent obtainable that: (i) that any loss shall be payable notwithstanding any act or negligence of Landlord or Tenant that might otherwise result in forfeiture of the insurance, (ii) the insurer waives all right of recovery by way of subrogation against Landlord and Tenant, their agents, employees and representatives in connection with any loss or damage covered by such policy, and (iii) the policies cannot be canceled, non-renewed, or coverage reduced except after thirty (30) days prior written notice to Landlord or Tenant, as applicable.
(e) Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby waive any and all rights of recovery, claim, action or cause of action against the other, its agents, officers, or employees, for any loss or damage that may occur to the Premises, or any improvements thereto, or to the Building, or any improvements thereto, or any personal property of such party therein, by reason of fire, the elements, or any other cause to the extent that such rights of recovery, claim, action or cause of action are or would be covered by insurance required under this Lease (regardless of whether or not the party required to carry such insurance in fact carries such insurance), regardless of cause or origin, including negligence of the other party hereto, its agents, officers or employees, and covenants that no insurer shall have any right of subrogation against such other party.
(f) Subject to the terms of Section 24(e) hereof, Tenant hereby indemnifies and holds Landlord harmless from and against any and all claims arising out of any occurrence in, upon or at the Premises, and in each case from and against any and all damages, losses, claims, actions, liabilities, lawsuits, costs and expenses, including without limitation attorneys fees and loss of life, personal injury and/or damage to property, arising in connection with any such claim or claims as described in this paragraph, or any action brought thereon. If such action is brought against Landlord, Tenant upon notice from Landlord shall defend the same through counsel selected by Tenants insurer, or other counsel reasonably acceptable to Landlord.
(g) Subject to the terms of Section 24(e) hereof, Landlord hereby indemnifies and holds Tenant harmless from and against any and all claims arising out of any occurrence in, upon or at the common areas at the Building, and in each case from and against any and all damages, losses, claims, actions, liabilities, lawsuits, costs and expenses, including without limitation attorneys fees and loss of life, personal injury and/or damage to property, arising in connection with any such claim or claims as described in this paragraph, or any action brought thereon. If such action is brought against Tenant, Landlord upon notice from Tenant shall defend the same through counsel selected by Landlords insurer, or other counsel reasonably acceptable to Tenant.
25. Subordination, Non-Disturbance and Attornment . Tenant agrees that its rights hereunder shall be subordinate to the lien of any mortgage or mortgages, or the lien resulting from any other method of financing or refinancing or any ground lease, now or hereafter in force against the Building and land upon which the Building is located (each an Encumbrance ) and to all advances made or hereafter to be made upon the security thereof. Tenant shall, in the event any proceeding is brought for the foreclosure of, or in the event a deed is given in lieu of
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foreclosure of, any mortgage made by Landlord covering the Building, attorn to the purchaser upon any such foreclosure or sale and recognize such purchaser as the Landlord under this Lease, provided such purchaser elects to adopt this Lease and gives Tenant written notice thereof. Tenant agrees to execute any instruments evidencing such subordination and attornment as reasonably may be required by the holder or any mortgage or deed of trust on the building. Landlord shall use is commercially reasonable efforts to obtain from the holder of the Encumbrance the execution of a Subordination, Non-Disturbance and Attornment Agreement in a form reasonably acceptable to Landlord, Tenant and such holder.
26. Estoppel Letter . Tenant shall at any time, upon not less than ten (10) days prior written request, execute and deliver in form and substance satisfactory to Landlord and any mortgagee or beneficiary under a deed of trust affecting the Premises, an estoppel letter certifying:
(a) The Commencement Date and the Expiration Date;
(b) The date to which Rent has been paid;
(c) That Tenant has accepted the Premises and that all improvements have been satisfactorily completed (or if not so accepted or completed, the matters objected to by Tenant);
(d) That this Lease is in full force and effect and has not been modified or amended (or if modified or amended, a description of same);
(e) That there are no defaults by Landlord under this Lease nor any existing condition with respect to which the giving of notice or lapse of time would constitute a default;
(f) That Tenant has not received any concession;
(g) That Tenant has received no notice from any insurance company of any defects of inadequacies in the Premises;
(h) That Tenant has no options or rights other than as set forth in this Lease or any amendment thereto described in such letter; and
(i) Such other matters as may be necessary or appropriate to qualify Tenants response to any of the foregoing statements of which Landlord may reasonably request.
If such letter is to be delivered to a purchaser of the Building, it shall further include the agreement of Tenant to recognize such purchaser as Landlord under this Lease, and thereafter to pay Rent to the purchaser or its designee in accordance with the terms of this Lease. Tenant acknowledges that any purchaser or prospective mortgagee of the Building may rely upon such estoppel letter and that Landlord may incur substantial damages by reason of any failure on the part of Tenant to provide such letter in a timely manner.
27. Hazardous Substance General . The term Hazardous Substances as used in this Lease shall mean pollutants, contaminants, toxic, medical, biohazards, or hazardous wastes, or any other substances, the use and/or the removal of which is restricted, prohibited or penalized
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by any Environmental Law , which term shall mean any federal, state or local law, ordinance or other statue of a governmental authority relating to pollution or protection of the environment. Tenant hereby agrees that (a) no activity will be conducted on the Premises or in the Building that will produce any Hazardous Substance, except for such activities that are part of the ordinary course of Tenants business activities (the Permitted Activities ), provided the Permitted Activities are conducted in accordance with all Environmental Laws and have been approved in advance in writing by Landlord and Tenant shall be responsible for obtaining any required permits and paying any fees and providing any testing required by any governmental agency in connection therewith; (b) the Premises will not be used in any manner for the storage of any Hazardous Substances except for the temporary storage of such materials that are used in the ordinary course of Tenants business (the Permitted Materials ), provided such Permitted Materials are properly stored in a manner and location meeting all Environmental Laws and approved in advance in writing by Landlord and Tenant shall be responsible for obtaining any required permits and paying any fees and providing any testing required by any governmental agency in connection therewith; and (c) Tenant will not permit any Hazardous Substances to be brought into the Premises except for the Permitted Materials, and if so brought or found located thereon, the same shall be immediately removed, with proper disposal, and all required cleanup procedures shall be diligently undertaken pursuant to all Environmental Laws. Upon prior notice and during normal business hours, Landlord or Landlords representative shall have the right but not the obligation to enter the Premises for the purpose of inspecting the storage, use and disposal of Permitted Materials, and if such Permitted Materials are being improperly stored, used or disposed of, then Tenant shall immediately take such corrective action as requested by Landlord. Should Tenant fail to take such corrective action within 24 hours, Landlord shall have the right to perform such work and Tenant shall promptly reimburse Landlord for any and all costs associated with said work. If at any time during or after the Term the Premises are found to be so contaminated or subject to said conditions, Tenant shall diligently institute proper and thorough cleanup procedures at Tenants sole cost, and Tenant agrees to indemnify and hold Landlord harmless from all claims, demand, actions, liabilities, costs, expenses, damages and obligations of any nature arising from or as a result of the use of the Premises by Tenant. The foregoing indemnification and the responsibilities of Tenant shall survive the termination or expiration of this Lease.
28. General Compliance; ADA . Tenant, at Tenants sole expense, shall comply with all laws, rules, orders, ordinances, directions, regulations and requirements of federal, state, county and municipal authorities now in force or which may hereafter be in force, which shall impose any duty upon the Landlord or Tenant with respect to the use, occupation or alteration of the Premises, and Tenant shall use all reasonable efforts to fully comply with The Americans With Disabilities Act of 1990 ( ADA ). Landlords responsibility for compliance with ADA shall include the Common Areas but not the Premises. Within ten (10) days after receipt, Tenant shall advise Landlord in writing, and provide the Landlord with copies of (as applicable), any notices alleging violation of ADA relating to any portion of the Building or of the Premises; any claims made or threatened in writing regarding noncompliance with the ADA and relating to any portion of the Building or of the Premises; or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with ADA and relating to any portion of the Building or the Premises.
29. Lease Commission . Tenant represents and warrants that Tenant has not dealt with any broker representing Tenant in connection with this Lease and Tenant hereby indemnifies and holds harmless Landlord and any broker employed by Landlord from any claims of any other
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broker(s) in connection with this Lease resulting from the actions of Tenant. Tenant hereby indemnifies and holds harmless Landlord and any broker employed by Landlord from any claims of any broker(s) claiming a commission in connection with any renewal, extension or any type of option relating to this Lease resulting from the actions of Tenant. Landlord hereby indemnifies and holds harmless Tenant and any broker employed by Tenant from any claims of Broker and any other broker(s) in connection with this Lease resulting from the actions of Landlord. Landlord hereby indemnifies and holds harmless Tenant and any broker employed by Tenant from any claims of any broker(s) claiming a commission in connection with any renewal, extension or any type of option relating to this Lease resulting from the actions of Landlord.
30. Assignment by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in the Building. In such event and upon such transfer, no further liability or obligation shall accrue against the assigning Landlord.
31. Assignment or Sublease . In the event Tenant should desire to assign this Lease or sublet the Premises or any part thereof, Tenant shall give Landlord at least sixty (60) days prior written notice, which shall specify the terms and effective date thereof. Landlord shall have thirty (30) days following receipt of such notice to notify Tenant in writing that Landlord elects (a) to terminate this Lease as to the space so affected as of the effective date specified by Tenant in which event Tenant will be relieved on such effective date of all further obligation hereunder as to such space, (b) to permit Tenant to assign or sublet such space, subject, however, to subsequent written approval of the proposed assignee or sublessee by Landlord, or (c) to refuse to consent (with reasonable cause only) to Tenants proposed assignment or sublease and to continue this Lease in full force and effect as to the entire Premises. If Landlord should fail to notify Tenant in writing of such election within such thirty (30) day period, Landlord shall be deemed to have elected the option in Section 31(b) hereof. No assignment or subletting by Tenant shall relieve Tenant of any obligation under this Lease. Any attempted assignment or sublease by Tenant in violation of the terms and covenants of this Section 31 shall be void.
32. Amendments . This Lease may not be altered or amended, except by an instrument in writing signed by all parties hereto. Tenant agrees that it shall execute such further amendments to this Lease as may be reasonably requested by any future holder of a first mortgage on the Building, provided such amendments do no materially and adversely affect the interest of Tenant hereunder.
33. Binding Agreement . This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord, and to the extent assignment may be approved by Landlord hereunder, Tenants successors and assigns.
34. Counterparts . This Lease may be executed by each of the parties hereto in separate counterparts with the same effect as if all parties hereto executed the same counterpart. Each such counterpart shall be deemed an original and all of such counterparts together shall constitute one and the same instrument. A counterpart executed by a party hereto and transmitted to the other parties hereto via facsimile will have the same effect as the delivery of the original counterpart.
35. Gender . The pronouns of any gender shall include the other genders, and either the singular or the plural shall include the other.
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36. Governing Law . This Lease shall be governed, construed and enforced in accordance with the laws of the State of Tennessee.
37. Entire Agreement . This Lease and the Exhibits attached hereto and forming a part hereof set forth the entire agreement between Landlord and Tenant.
38. Severability . The invalidity or unenforceability of a particular provision of this Lease shall not affect the other provisions hereof, and this Lease shall be construed in all respects as if such invalid or unenforceable provision were omitted.
39. Notices . All notices, requests, demands, tenders and other communications under this Lease shall be in writing. Any such notice, request, demand, tender or other communication shall be deemed to have been duly given when actually delivered, or the next business day following delivery to a nationally recognized commercial courier for next business day delivery, to the address for each party set forth in the Schedule, or when transmitted by facsimile to the telecopy number for each party set forth in the Schedule. Rejection or other refusal to accept, or inability to deliver because of changed address of which no notice was given, shall be deemed to be receipt of such notice, request, demand, tender or other communication. Any party, by written notice to the others in the manner herein provided, may designate an address different from that stated herein.
40. Business Day . Whenever the term business day is used in this Lease, a business day shall mean each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which national banks in the City of Nashville, Tennessee, are closed.
41. Mortgagee Protection . Tenant agrees to give any mortgage and/or deed of trust holders, as to all or a portion of the Building, a copy of any notice of default served upon Landlord, provided that prior to such notice Tenant has been notified in writing (by way of notice or assignment of rents and leases, or otherwise) of the addresses of such mortgage and/or deed available by virtue of Landlords default unless Tenant has given such mortgage and/or deed of trust holders thirty (30) days after receipt of notice of such default or such other amount of time as may be reasonably required to cure such default.
42. Compliance with Federal Law . To Tenants knowledge, neither Tenant nor Tenants principals is identified on the list of specially designated nationals and blocked persons subject to financial sanctions that is maintained by the U.S. Treasury Department, Office of Foreign Assets Control and any other similar list maintained by the Office of Foreign Assets Control pursuant to any authorizing United States law, regulation or Executive Order of the President of the United States nor is Tenant subject to trade embargo or economic sanctions pursuant to any authorizing United State law, regulation or Executive Order of the President of the United States. The execution of this Lease by Tenant will not violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto. In addition, Tenant warrants, represents and covenants that Tenant is not an entity or person (i) that is listed in the Annex to, or is otherwise subject to the provisions of Executive Order 13224 issued on September 24, 2001 ( EO13224 ), (ii) whose name appears on the United States Treasury Departments Office of Foreign Assets Control ( OFAC ) most current list of Specifically Designed National and Blocked Persons (which list may be published from time to time in various mediums including, but not limited to, the OFAC
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website, http:www.treas.gov/ofac/t11sdn.pdf), (iii) who commits, threatens to commit or supports terrorism, as that term is defined in EO 13224, or (iv) who is otherwise affiliated with any entity or person listed in subparts (i) (iv) above (any and all parties or persons described in subparts [i] [iv] above are herein referred to as a Prohibited Person ). Tenant covenants and agrees that Tenant will not knowingly (i) conduct any business, nor engage in any transaction or dealing, with any Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, or (ii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in EO13224. Tenant further covenants and agrees to deliver (from time to time) to Landlord any such certification or other evidence as may be reasonably requested by Landlord, confirming that Tenant (i) is not a Prohibited Person, (ii) has not knowingly engaged in any business, transaction or dealings with a Prohibited Person, including, but not limited to, the making or receiving of any contribution of funds, goods, or services, to or for the benefit of a Prohibited Person, and (iii) is not, or shall not become, a person or entity whose activities are regulated by the International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders thereunder.
43. Required Hours of Operation . As a covenant of Tenant under this Lease, Tenant agrees to maintain the Premises open for business and properly stocked and manned for business on Monday through Friday from 8:30 a.m. until 5 p.m. Tenant agrees to open the Premises for business to the public, fully staffed, on or before the Commencement Date. Tenant will not any time leave the Premises vacant, but will in good faith continuously throughout the Term conduct its business in the entire Premises for the Permitted Use.
44. Renewal Option.
(a) Tenant shall have the right and option to renew the Term of the Lease (the Renewal Option ) for two (2) additional period(s) of five (5) years (each a Renewal Term ); provided, however, such Renewal Option is contingent upon the following (i) no Event of Default has occurred and is continuing at the time Tenant gives Landlord notice of Tenants intention to exercise the Renewal Option; (ii) at the time of Tenants exercise of the applicable Renewal Option, Tenant has no outstanding Event of Default and no event has occurred that upon notice or the passage of time would constitute an Event of Default; (iii) Tenant is occupying the Premises; and (iv) Tenant has provided written notice of the exercise of the Renewal Option as required by this Lease.
(b) Tenant may exercise each Renewal Option by giving Landlord notice at least 270 days prior to the Expiration Date. If Tenant fails to give such notice to Landlord prior to said 270 day period, then Tenant shall forfeit the Renewal Option. If Tenant exercises the Renewal Option, then during any such Renewal Term, Landlord and Tenants respective rights, duties and obligations shall be governed by the terms and conditions of the Lease. Time is of the essence in exercising the Renewal Option.
(c) If Tenant exercises the Renewal Option, then during any such Renewal Term, all references to the term Term, as used in the Lease, shall mean the Renewal Term.
(d) In the event Landlord consents to an assignment or sublease by Tenant (excluding any assignment to a wholly-owned subsidiary or affiliate of Tenant), then the Renewal Option shall automatically terminate unless otherwise agreed in writing by Landlord.
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(e) The Base Rent payable by Tenant during the first Lease Year of the first Renewal Term shall be three percent (3.00%) (the Rent Escalator) over the Base Rent payable during the last Lease Year of the initial Term. Base Rent shall increase on the first day of each Lease Year during the first Renewal Term by the Rent Escalator. Subject to applicable adjustments to Base Rent as provided herein, Tenants leasing of the Premises during any Renewal Term shall be upon and subject to the same terms, covenants and conditions set forth in this Lease.
(f) The Base Rent payable by Tenant during the second Renewal Term shall be the Market Rental Rate (as defined below). Within 10 days after Landlords receipt of Tenants exercise of its Renewal Option, Landlord will notify Tenant (the Rate Notice) of the Market Rental Rate. If Tenant agrees that the rental rate set forth in the Rate Notice is the Market Rental Rate, such rental rate will be the Market Rental Rate for the purposes of this Section 44, and Base Rent for the first year of the first Renewal Term will be the Market Rental Rate. If Tenant disagrees with the Market Rental Rate in the Rate Notice, then Tenant will have 30 days after receipt of the Rate Notice to object to the rental rate in the Rate Notice by giving notice to Landlord. If Tenant fails to object within such 30 day period, Tenant will be deemed to have agreed that the Rate Notice contains the Market Rental Rate. If Tenant timely notifies Landlord of Tenants objection to the rate set forth in the Rate Notice, then Landlord and Tenant will, for a period of 20 days from and after Tenant gives its objection to the Rate Notice, negotiate in good faith to determine a Market Rental Rate acceptable to both Landlord and Tenant.
(g) Parties Brokers . If the parties are unable to agree upon the Market Rental Rate during such 20 day period, then, within 7 days after the expiration of such 20 day period, Landlord and Tenant will each appoint their own licensed real estate broker who has at least 10 years full-time experience in commercial retail leasing in the Franklin, Tennessee market (the Parties Brokers). The Parties Brokers will negotiate in good faith for 10 days after the date that both Parties Brokers have been appointed to determine a Market Rental Rate acceptable to both Landlord and Tenant. If the Parties Brokers cannot reach agreement on the Market Rental Rate within such 10 day period, then within five days after the expiration of such 10 day period, Landlord will deliver to Tenant a written determination of the Market Rental Rate as determined by Landlord and its broker using the criteria set forth below (Landlords Determination). Tenant will have five days from the date of Landlords delivery of Landlords Determination to notify Landlord of Tenants acceptance of Landlords Determination or deliver to Landlord Tenants written determination of the Market Rental Rate using the criteria set forth below (Tenants Determination). If Tenant does not deliver Tenants Determination to Landlord within such five day period, Tenant will be deemed to have accepted Landlords Determination and the rental rate set forth in Landlords Determination will be the Market Rental Rate. If Tenant does deliver Tenants Determination within such five day period, then the Parties Brokers will have an additional seven days from the date of delivery of Tenants Determination to negotiate a Market Rental Rate acceptable to both Landlord and Tenant.
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(h) Third Broker . If no agreement can be reached as to the Market Rental Rate within such seven day period, then, within five days after such seven day period expires, the Parties Brokers will appoint a third broker (the Third Broker). The Third Broker will be a person who has not previously acted in any capacity for either party and who meets the same experience qualifications as required for the Parties Brokers. Within 10 days of his or her appointment, the Third Broker will review Landlords Determination and Tenants Determination of the Market Rental Rate and such other information as he or she deems necessary and will select either Landlords Determination or Tenants Determination of the Market Rental Rate (but no other rate) as being more reasonable. The Third Broker will be instructed, in deciding whether Landlords Determination or Tenants Determination is more reasonable, to use the criteria as to the Market Rental Rate set forth below. The Third Broker will immediately notify the parties of his or her selection of the Landlords Determination or the Tenants Determination as being more reasonable, and then such selected determination will be the Market Rental Rate. Each of the parties will bear the entire cost of their own broker and 1/2 of the cost of the Third Broker.
IN WITNESS WHEREOF , the parties hereto have executed this foregoing Lease as of the date first set forth above.
LANDLORD : | TENANT : | |||||||||||
WESTHAVEN TOWN CENTER FUND I, LLC, a Tennessee limited liability company | FRANKLIN SYNERGY BANK, a Tennessee banking corporation | |||||||||||
By: |
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By: |
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Print Name: |
Tim Downey |
Print Name: |
Kevin Herrington |
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Title: |
Chief Manager |
Title: |
SVP |
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Date: | 12/21/11 , | 2011 | Date: | 12/20 , | 2011 |
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EXHIBIT A
PROPERTY DESCRIPTION
Lot 4000 of that Final Subdivision Plat of Westhaven Section 15 of record in Plat Book P44, page 88, Registers Office for Williamson County, Tennessee.
This lot is a 6.44 acre tract that is all of the first block in the Town Center.
EXHIBIT A
EXHIBIT B
FLOOR PLAN
EXHIBIT B
EXHIBIT C
WORKLETTER
This Exhibit C sets forth the rights and obligations of Landlord and Tenant with respect to space planning, engineering, final workshop drawings, and the construction and installation of any improvements to the Premises ( Tenant Improvements ).
IN CONSIDERATION OF THE MUTUAL COVENANTS HEREINAFTER CONTAINED, LANDLORD AND TENANT DO MUTUALLY AGREE TO THE FOLLOWING:
1. Delivery of Premises . Landlord shall deliver the Premises on the date of execution of this Lease according to the provisions of Exhibit E attached hereto and incorporated herein by this reference (the Shell Condition ) and subject to the provisions of Section 13 of the Lease. The Delivery Date set forth in the Schedule is an estimated delivery date of the Premises in its Shell Condition, and is subject to force majeure and other delays that may arise with respect to Landlords Work.
2. Space Planning, Design and Working Drawings . Tenant shall submit a plan to Landlord for Landlords approval prepared by an architect or space planner which plans shall constitute plans and working drawings for the construction and completion of the Tenant Improvements ( TI Plans ). Landlord shall approve or make objections to the TI Plans within five (5) business days after receipt of the same; provided, however, Landlord shall have sole and absolute discretion to approve or disapprove any TI Plans that will be visible to the exterior of the Premises, or that may affect the structural integrity of the Building. If Landlord has comments to the TI Plans submitted by Tenant, it shall provide such comments in reasonable detail within such five (5) business day period, and the parties shall thereafter continue to work in good faith to finalize the TI Plans within ten (10) business days following the date the TI Plan was first submitted to Landlord. After the TI Plans are finalized and approved pursuant to the foregoing provisions, Tenant shall construct its Tenant Improvements in accordance and in compliance with applicable laws, including applicable codes requirements, consistent with the TI Plans. Should Tenant desire to materially deviate from the TI Plans approved by Landlord, Tenant shall first submit its proposed revised TI Plans to Landlord for Landlords approval, which shall not be unreasonably withheld, conditioned or delayed. If the TI Plans have not been finalized and approved, despite Landlords and Tenants diligent good faith efforts, within sixty (60) days from Landlords initial receipt of the TI Plans, both Landlord and Tenant shall each have the right to terminate this Lease upon written notice to the other party, in which event neither party shall have any further obligations to the other hereunder.
Tenant shall comply with the Guidelines regarding external signage, and shall submit to Landlord or Landlords consultant external signage drawings for Landlord approval.
3. Tenants Contractor . Tenant shall select a licensed general contractor (the Contractor ), approved by Landlord, to construct and install the Tenant Improvements in accordance with the TI Plans, at Tenants expense. Landlord agrees to reasonably cooperate with Tenant, the Architect, and Contractor and to attend a reasonable number of meetings with Tenant and Tenants Architect and/or Contractor as necessary throughout the course of construction of the Tenant Improvements, all without charge, cost or expense to Tenant. Tenant agrees that, if other tenants are present in the Building at the time of either the initial construction
WORKLETTER - 1
of the Tenant Improvements or any subsequent construction or alteration activity, Landlord shall provide prior written approval of the hours of such construction, which may be limited to hours outside standard business hours, and may establish additional reasonable requirements regarding the construction activities.
4. Tenants Covenants and Warranties . Tenant covenants and agrees that all work performed in connection with the construction of the Tenant Improvements shall be performed in a good and workmanlike manner and in accordance with all applicable laws and regulations and the TI Plans. The Contractor shall provide a warranty on workmanship and materials and Landlord shall be a named beneficiary of such warranty. Tenant agrees to secure the release of any mechanics or materialmens lien filed against the Building and arising from the Tenant Improvements within thirty (30) days of written notice to Tenant of such lien.
5. Lease Provisions; Insurance . Contractor shall, prior to the commencement of any Tenant Improvements, obtain or cause to be obtained from an insurance carrier reasonably satisfactory to Landlord, and shall thereafter maintain in full force and effect until such work or improvements are completed, the following coverages:
Limits Required :
General Liability |
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Each Occurrence |
$ | 1,000,000 | ||
General Aggregate |
$ | 2,000,000 | ||
Products/Comp |
$ | 2,000,000 | ||
Automobile Liability |
$ | 1,000,000 | ||
Excess/Umbrella Liability |
$ | 2,000,000 | ||
Workers Compensation and Employers Liability |
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Each Accident |
$ | 500,000 | ||
Disease Each Empl. |
$ | 500,000 | ||
Disease Pol.Limit |
$ | 500,000 |
Contractor shall provide Landlord prior to commencement of any such work with certificates of such insurance which shall name Landlord, its successors and assigns, and all direct and indirect subsidiaries or owners, their respective officers, directors, agents and employees as primary, noncontributing additional insured, including products and completed operations, excluding workers compensation and employers liability. Each certificate shall provide that Landlord will be given not less than ten (10) days written notice prior to cancellation or expiration of the insurance evidenced thereby. Waiver of subrogation applies as allowed by law. General Liability/Umbrella contains no habitational or EIFS exclusions or limitations.
6. Commencement Date .
(a) The Commencement Date of the Term of the Lease and date of commencement of Rent payments shall be the earlier of (i) ninety (90) days after delivery of the Premises in the Shell Condition to Tenant for construction of the Tenant Improvements or (ii) completion of the Tenant Improvements and opening of business by Tenant within the Premises.
(b) Upon determination of the Commencement Date, Landlord and Tenant shall enter into a Commencement Agreement in the form of Exhibit F attached hereto and incorporated herein by this reference.
WORKLETTER - 2
7. Allowance . Landlord agrees to provide an allowance as set forth in the Schedule, to design, engineer, install, supply and otherwise to construct the Tenant Improvements in the Premises that will become a part of the Building (the Allowance ). The Allowance shall be used for improvements to the Premises, including but not limited to costs of construction, space planning, design and architectural fees, engineering costs, and permits for Tenants buildout of the Premises as provided in this Workletter. Tenant is fully responsible for the payment of all costs in connection with the Tenant Improvements in excess of the Allowance. After the Commencement Date, Tenants payment to Landlord of the Rent for the first calendar month, and Tenants occupancy of the Premises, and within thirty (30) days following Tenants written request therefor from Landlord, which request shall provide all receipts, invoices, lien waivers, and other documentation as may be reasonably requested by Landlord in substantiation of such request (a Disbursement Request ), Landlord shall disburse to Tenant the Allowance as substantiated in the Disbursement Request for payment by Tenant of expenses associated with the construction of the Tenant Improvements or as otherwise permitted hereunder.
WORKLETTER - 3
EXHIBIT D
RULES AND REGULATIONS
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar areas shall not be used for the disposal of trash, be obstructed by tenants, or be used by tenants or any purpose other than entrance to and exit from the Leased Premises and for going from one part of the Building to another part of the Building.
2. Plumbing fixtures shall be used only for the purposes for which they are designed, and no sweepings, rubbish, rags or other unsuitable materials shall be disposed into them. Damage resulting to any such fixtures from misuse by a tenant shall be the liability of said tenant.
3. Tenant may not install ceiling-mounted or in-ceiling speakers within the Premises.
4. Signs, advertisements, or notices visible in or from public corridors or from outside the Building shall be subject to Landlords prior written approval.
5. Movement in or out of the Building of furniture, office equipment, goods or any other bulky or heavy materials shall be restricted to such hours as Landlord shall reasonably designate. Landlord will determine the method and routing of said items so as to ensure the safety of all persons and property concerned. Advance written notice of intent to move such items must be made to the Building management office.
6. Building management shall have the authority to prescribe the manner that heavy furniture and equipment are positioned.
7. Corridor doors, when not in use, shall be kept closed.
8. Tenant space that is visible form public areas must be kept neat and clean. Any window display or other matter visible from the exterior of the Premises is subject to the approval of Landlord on an ongoing basis.
9. No animals shall be brought into or kept in, on or about the Building, except for seeing-eye dogs.
10. Tenant will comply with all security procedures during business hours and after hours and on weekend.
11. Tenants are requested to lock all doors leading to corridors or the exterior of the Building and to turn out all lights at the close of their working day.
12. No flammable or explosive fluids or materials shall be kept or stored within the Building except in areas approved by Landlord, and Tenant shall comply with all applicable building and fire codes relating thereto.
13. Tenant may not place any items on the balconies of the Building that alter the exterior appearance of the Building without obtaining Landlords prior written consent.
EXHIBIT D - 1
14. Any motor vehicle exceeding the height restrictions of any parking facility shall not be parked at any location on the parking area and no commercial vehicles may be parked in the parking area unless approved by Landlord.
15. Tenant may not make any modifications, additions or repairs to the Premises and may not install any furniture, fixtures or equipment in the Premises which are in violation of any applicable building and/or fire code governing the Premises or the Building.
16. Smoking is prohibited in the Building (including, but not limited to, the Premises, the main building lobby, public corridors, elevator lobbies, service elevator vestibules, stairwells, restrooms and other common areas within the Building, and in the vicinity of any entrance to the Building. Landlord may designate outdoor smoking areas from time to time.
17. All Tenant contractors shall abide by the contractors rules and regulations promulgated by Landlord from time to time.
18. Landlord reserves the right to rescind any of these rules and regulations and to make such other and further rules and regulations as in its reasonable judgment shall, from time to time, be required for the safety, protection, care and cleanliness of the Building, the operation thereof, the preservation of good order therein and the protection and comfort of the tenants and their agents, employees and invitees. Such rules and regulations, when made and written notice thereof is given to a tenant, shall be binding upon it in like matter as if originally herein prescribed.
EXHIBIT D - 2
EXHIBIT E
SHELL CONDITION
I. DESCRIPTION OF LANDLORDS WORK OUTSIDE PREMISES
a. | As Is Condition |
II. DESCRIPTION OF LANDLORDS WORK AS PROVIDED TO THE PREMISES
a. | Landlord will provide open demising stud wall separating the Premises from the balance of the space. |
b. | Mechanical: Landlord will relocate one (1) RTU from adjacent premises to the Premises. |
Landlords Work shall be limited to that described as Landlords Work in the foregoing paragraphs of this Work Letter. All work not so classified as Landlords Work is Tenants Work.
III. DESCRIPTION OF TENANTS WORK
a. | Signs, Awnings & Storefront Illumination: Tenant shall pay for all signs, awnings and storefront lighting and the installation thereof, including electrical hook-up. Subject to the Design Criteria attached to this Lease as Exhibit G . |
Landlord will provide a location for tenant signage. Tenant to provide Landlord with design shop drawings for Landlords approval. All Tenant signage shall conform to Landlord Signage Guidelines provided by Landlord.
b. | Utilities: All meters, sub meters (with the exception of water, which sub metering shall be provided by Landlord) or other measuring devices in connection with utility services to the Premises shall be provided by Tenant at Tenants expense. All service deposits shall be made by Tenant at Tenants expense. All Tenant meters, panels, conduit and pipes located on the exterior of the building shall be painted to match the color of adjacent wall material. Color, location and wall penetrations shall be approved by Landlord. |
Regarding Connection Fees for Utilities: All fees, including connection fees, shall be paid by Tenant. If any fees that are paid by Landlord on Tenants behalf, Tenant shall reimburse Landlords cost within thirty (30) days following demand.
c. | Adequate Electrical Service panel, step down transformers, wiring, and fixtures. |
d. | All meters or other measuring devices in connection with utility service shall be provided by Tenant. Tenant shall also provide all connections to the utility services provided by Landlord. All service deposits shall be made by Tenant at Tenants expense. |
e. | Tenant is responsible for providing sound attenuation insulation and minimum 5/8 gypsum board wall (fire rated if required) dividing Tenants space from that of the adjacent space, taped and bedded Tenants side only, and shall extend from floor slab up to roof deck. |
f. | Interior partitions including finishing, electrical wiring, and connections within the Premises. Furring and drywall on all exterior walls. |
g. | Light covers and special hung and furred ceilings. |
h. | Interior Lighting |
i. | Interior painting. |
j. | Store fixtures and furnishings. |
k. | Display window enclosure requires Landlord approval of display window area and shall be in accordance with Tenant Design Criteria. Landlord approval of finishes will extend to a zone within four (4) feet of all windows. |
l. | Plumbing fixtures within the Premises. |
m. | Interior ceiling shall be in accordance with Tenant Design Criteria. |
n. | Tenant shall be responsible for all ductwork and distribution, wiring and testing for heating, air conditioning and ventilating equipment, including electrical and/or gas hookup, and roof penetrations if required. Tenant HVAC piping and conduit which is outside of Tenant space, including refrigerant lines, condensate lines, exhaust and supply ductwork will be routed in locations and chases as defined by Landlord. |
o. | Floor covering. |
p. | If a sprinkler system is required by code, Tenant shall install or modify such system to accommodate Tenants use within the Premises. |
q. | Tenant shall provide daily clean-up of the Premises and the immediately surrounding area during construction and the removal of all construction debris from the Premises to Tenants designated trash containers. |
s. | Subject to applicable governmental approvals, Tenant may, at its option, construct and install a drive-through service area, as shown on Exhibit E-1 attached hereto. |
EXHIBIT E-1
DRIVE THROUGH PLAN
EXHIBIT F
FORM OF COMMENCEMENT AGREEMENT
This COMMENCEMENT AGREEMENT (this Agreement ) is made and entered into as of this day of , , by and between WESTHAVEN TOWN CENTER FUND I, LLC, a Tennessee limited liability company ( Landlord ), and ( Tenant ):
W I T N E S S E T H :
WHEREAS, Tenant and Landlord entered into that certain Lease Agreement dated as of , 2011 (the Lease ), regarding certain Premises as defined therein; and
WHEREAS, certain improvements related to the Premises have been completed, and the parties desire to establish the Commencement Date and the Expiration Date of the Lease as set forth below.
NOW, THEREFORE, in consideration of the mutual and reciprocal agreement herein contained, Tenant and Landlord hereby agree that the Lease be, and the same is hereby modified in the following particulars:
1. Capitalized terms used herein and not otherwise defined shall have the meaning provided in the Lease.
2. The Initial Term of the Lease commenced on and the Commencement Date is defined as , 20 (the Commencement Date ). The Initial Term of said Lease shall terminate on (the Expiration Date ). The Lease is hereby amended to the extent necessary to incorporate the foregoing.
3. The Leased Premises are composed of Rentable Square Feet. Tenants Proportionate Share shall be %. The Tenant Improvement Allowance is $ . Base Rent under the Lease is hereby revised as follows:
Year |
Base Rent per RSF | Monthly Base Rent | Annual Base Rent | |||
1 12 |
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13 24 |
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25 36 |
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37 48 |
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49 60 |
4. Except as modified and amended by this Agreement, the Lease shall remain in full force and effect.
EXHIBIT F - 1
IN WITNESS WHEREOF, Landlord and Tenant have caused this Agreement to be duly executed, as of the day and year first above written.
LANDLORD : | TENANT : | |||||||||||
WESTHAVEN TOWN CENTER FUND I, LLC, a Tennessee limited liability company | FRANKLIN SYNERGY BANK, a Tennessee banking corporation | |||||||||||
By: |
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By: |
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Print Name: |
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Print Name: |
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Title: |
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Title: |
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Date: | , | 20 | Date: | , | 2011 |
EXHIBIT F - 2
EXHIBIT G
SIGN GUIDELINES
[SEE ATTACHED]
EXHIBIT G - 1
EXHIBIT H
EDWARD JONES WAIVER LETTER
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124S J.J. Kelley Memorial Drive, 2 nd Floor, Saint Louis, MO 63131
Telephone 1-800-824-6525
December 13, 2011
PAUL NEUROTH
SOUTHERN LAND COMPANY LLC
WESTHAVEN TOWN CENTER FUND I LLC
1550 W MCEWEN DR STE 200
FRANKLIN, TN 37067
RE: Lease Agreement (the Lease) by and between Westhaven Town Center Fund I, LLC (Landlord) and Edward D. Jones & Co. (Tenant) Branch 94695
Dear Mr. Neuroth:
Landlord is currently considering leasing a portion of certain premises currently leased to Regions Bank but not occupied (the Proposed Premises) at Westhaven Town Center to Franklin Synergy Bank (Prospective Tenant), which intend to use the Proposed Premises primarily for the purposes of bank lending (both construction and consumer), as well as mortgage lending, new deposits, acceptance of deposits, and ancillary services including ATM service, financial advisory type services and/or products (provided that such ancillary services related to financial advisory type services and/or produces shall not constitute more than 10% of Tenants business (the Proposed Use)
Permitted Use in the Schedule to Lease Agreement states,
So long as Tenant it open and operating under the permitted use. Tenant shall be the only business in the Building to engage in the following exclusive services: investment brokerage, insurance sales and related financial services.
Edward Jones has agreed to grant a ONE TIME WAIVER to the above exclusive use clause to allow Franklin Synergy Bank to move into the building. Tenant agrees that: (1) Tenant consents to the Proposed Use by the Prospective Tenant; (2) Tenant waives any remedies under the Lease arising out of the Proposed Use by the Prospective Tenant; (3) this letter will inure to the benefit of Landlord and Prospective Tenant; and (4) this letter will be binding upon Tenant and it successors and permitted assigns.
All other terms and conditions of the lease will remain in full force and effect and by signing below the Landlord and Tenant both agree to modify the lease as stated above. Please do not hesitate to contact me at (314) 515-3963 if you have any questions. Thank you and Edward Jones looks forward to maintaining a long lasting relationship with you and your company.
Experience & Technology You Can Build On
Saint Louis Cincinnati Dayton Indianapolis Kansas City Minneapolis/Saint Paul Nashville
Commercial Real Estate Services
EXHIBIT G - 1
Exhibit 10.2
TRIPLE NET OFFICE LEASE AGREEMENT
THIS TRIPLE NET OFFICE LEASE AGREEMENT (this Lease) is made and entered into on this 12 day of June, 2012, by and between BERRY FARMS REAL ESTATE PARTNERS, LLC, a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK, a Tennessee banking corporation (Tenant).
1. Leased Premises .
a. Subject to and upon the terms hereinafter set forth, and in consideration of the sum of Ten Dollars ($10.00) and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease and take from Landlord, approximately a range of 3,000 to 3,500 rentable square feet of the building located on certain improved real property municipally known as Lot 307, or Outparcel K, in the Berry Farms Town Center Section 3 located in Franklin, Williamson County, Tennessee, and more particularly described in Exhibit A attached hereto (the Premises).
b. Tenants taking possession of the Premises or any portion thereof shall be conclusive evidence against Tenant that such portion of the Premises was then in good order and satisfactory condition, subject to any punch list items identified in writing from Tenant to Landlord within thirty (30) days following completion of Landlords Work, and further subject to any latent defects in Landlords Work of which Tenant notifies Landlord in writing within one (1) year from the completion of Landlords Work. Except to the extent expressly set forth in this Lease, Tenant acknowledges that no promise by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees to alter, remodel, improve, repair, decorate or clean the Premises has been made to or relied upon by Tenant, and that no representation respecting the condition of the Premises by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees has been made to or relied upon by Tenant.
2. Term . Subject to and upon the terms and conditions set forth herein, or in any exhibit hereto, the term (together with any extensions or renewals thereof, the Term) of this Lease shall commence on the Commencement Date (defined below) and shall expire one hundred eighty months (180) after the Commencement Date. Commencement Date shall mean the date Tenant begins its business operations in the Premises but in no event later than 30 days after Landlord completes Landlords Work and delivers possession of the Premises to Tenant by Landlord giving Tenant written notice. For purposes of clarification, immaterial punch list items identified by Tenant pursuant to Section 1 (b) shall not affect the Commencement Date, unless they materially and adversely affect Tenants ability to (i) operate its business in the Premises or (ii) complete Tenants build out of the Premises. The Commencement Date shall be set forth in a Commencement Agreement, identical in the form to that attached hereto as Exhibit B and executed by Landlord and Tenant.
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3. Use . The Premises are to be used and occupied solely for the purpose of providing banking and financial services and office space and for any other lawful use, but for no unlawful purpose. Tenant shall not use or allow the Premises to be used for any improper, immoral, disreputable or objectionable purpose, and Tenant shall not cause, maintain or permit any nuisance or waste in, on or about the Premises. Without limitation of the foregoing, in no event shall Tenant use or permit the use of all or any portion of the Premises (i) as and/or for sleeping quarters and/or lodging or (ii) for any unlawful purpose of any kind whatsoever and howsoever arising.
4. Rent .
a. Commencing on the Commencement Date and continuing thereafter throughout the full Term of this Lease, Tenant hereby agrees to pay the annual Base Rental (defined and set forth below) and Additional Rental (defined below). The Base Rental shall be due and payable in advance in twelve equal monthly installments on the first day of each calendar month at Landlords address as provided herein (or such other address as may be designated by Landlord from time to time). If the Commencement Date is other than the first day of a calendar month or if this Lease expires on other than the last day of a calendar month, then the installments of Base Rental for such month or months shall be prorated.
Base Rental shall mean the amount of rent due to Landlord per square foot for the first year of the Term as set forth in the Base Rental Agreement by and between Landlord and Tenant, in the form attached hereto as Exhibit B , to be executed and delivered to Landlord before the Commencement Date; provided, however, that Base Rental for the first year of Term shall not be less than $26.00 per square foot and not more than $30.00 per square foot for the Premises.
Year |
Per Square Foot First Floor |
Total Per Annum |
Total Per Month |
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1 | TBD | TBD | TBD |
Following the first year of the Term, Base Rental shall increase on each anniversary of the Commencement Date as set forth herein. Effective on each Adjustment Date (defined below), Base Rental shall be increased (relative to the previous years Base Rental) by the percentage increase, if any, in the CPI (defined below); provided, however, that each annual increase in Base Rental shall not be less than 1.5% of the previous years annual Base Rental and not more than 3.5% of the previous years annual Base Rental. Adjustment Date shall mean, as the case may require, each anniversary of the Commencement Date; provided, however, if the Commencement Date is other than the first day of the month, then Adjustment Date shall mean, as the case may require, the first day of the first month occurring after each anniversary of the Commencement Date. As used herein, CPI shall mean the Consumer Price Index for All Urban Consumers South Urban Area, All
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Items, U.S.A. Area, 1982-1984 = 100, as published by the Bureau of Labor Statistics, United States Department of Labor (U.S. City Average). If such index is discontinued, CPI shall then mean the most nearly comparable index published by the Bureau of Labor Statistics or other official agency of the United States Government as determined by Landlord.
b. All sums other than Base Rental due Landlord under this Lease (including, without limitation, amounts reimbursed to Landlord or for which Tenant must indemnify Landlord, late fees, and attorney fees and costs) shall be additional rental (Additional Rental). Base Rental and Additional Rental collectively are referred to as Rental or Rent.
c. Tenant hereby agrees to pay to Landlord first months Base Rental on the day this Lease is executed by Tenant. Due to the Base Rental not being set until Exhibit B is formalized, Tenant shall pay seven thousand dollars ($7,000) as payment toward first months rent. This monthly rent was calculated using the median of the range of monthly rents as shown under section 4(a). If the monthly rent determined on Exhibit B is lower than this estimated amount, the Tenant will receive a credit of the difference for the next months rent. However, if the monthly rent determined on Exhibit B is higher than this estimated amount, Tenant will make up the difference in the following months rent payment.
5. Renewal Options .
a. Tenant shall have the right and option to renew the Lease (Renewal Option) for two (2) successive renewal periods of five (5) years each (each, an Option Term); provided, however, the Renewal Option is contingent upon the following: (i) there is not an Event of Default beyond all applicable cure period(s) at the time Tenant gives Landlord notice of Tenants intention to exercise the Renewal Option or at the expiration of the current Term; (ii) no event has occurred that upon notice or the passage of time would constitute an Event of Default, unless Landlord has given notice of default and Tenant is diligently attempting to cure such event; and (iii) Tenant is occupying the Premises. Following expiration of the final Option Term allowable hereunder, Tenant shall have no further right to renew the Lease pursuant to this Section 5.
b. Tenant shall exercise the Renewal Option by giving Landlord notice at least one hundred eighty (180) days prior to the expiration of the current Term. If Tenant fails to give notice to Landlord prior to the 180-day period, then Tenant shall forfeit the Renewal Option. If Tenant exercises the Renewal Option, then during the Option Term, Landlord and Tenants respective rights, duties and obligations shall be governed by the terms and conditions of the Lease, except as provided otherwise in this Section. Time is of the essence in exercising the Renewal Option.
c. The Base Rental for an Option Term shall be the Fair Market Rental Rate. Fair Market Rental Rate shall mean the market rental rate for the time period such determination is
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being made for office space in same class office buildings in the area of Franklin, Tennessee (the Area) of comparable condition for space of equivalent quality, size, utility, and location. Such determination shall take into account all relevant factors, including, without limitation, the following matters: the credit standing of Tenant; the length of the term; the fact that Landlord will experience no vacancy period and that Tenant will not suffer the costs and business interruption associated with moving its offices and negotiating a new lease; construction allowances and other tenant concessions that would be available to tenants comparable to Tenant in the Area (such as moving expense allowance, free rent periods, and lease assumptions and take over provisions, if any, but specifically excluding the value of improvements installed in the Premises at Tenants cost), and whether adjustments are then being made in determining the rental rates for renewals in the Area because of concessions being offered by Landlord to Tenant (or the lack thereof for the Option Term in question). For purposes of such calculation, it will only be assumed that Landlord is paying a representative of Tenant a brokerage commission in connection with the Option Term in question if Landlord is in fact paying a brokerage commission to a representative of Tenant in connection with the applicable Option Term.
6. Utilities and Service . Tenant shall pay, when due, all charges for gas, water, electricity and any and all other utility services used upon the Premises during the Term and any holdover period, including, without limitation, all tap, connection and/or meter fees and deposits.
7. Security Deposit . Tenant hereby agrees to pay to Landlord a security deposit of seven thousand dollars ($7,000), which is equal to the estimated first months Base Rental, on the day this Lease is executed by Tenant (the Security Deposit). Upon the occurrence of any Event of Default by Tenant, Landlord may, from time to time, without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrears of Base Rental or Additional Rental or any other payment obligation hereunder, including, but not limited to, the cost of any damage, injury, expense, or liability caused by any Event of Default by Tenant hereunder. Any remaining balance of the Security Deposit shall be returned by Landlord to Tenant within a reasonable period of time after the termination or expiration of this Lease and the satisfaction of Tenants obligations hereunder. The Security Deposit shall not be considered an advance payment of rental or a measure of Landlords damages in case of default by Tenant. Tenant shall not be entitled to receive and shall not receive any interest on the Security Deposit, and Landlord may commingle the same with other monies of Landlord. In the event Landlord applies the Security Deposit or any portion thereof to the payment of any sum described above and this Lease is not terminated, Tenant shall immediately deposit with Landlord an amount of money equal to the amount so applied, and such amount shall be deemed to be part of the Security Deposit. In the event of a sale or transfer of Landlords interest in the Premises, Landlord shall have the right to transfer the Security Deposit to the purchaser or lessor, as the case may be, and upon any such transfer and acknowledgement of receipt of Security Deposit by such transferee, Landlord shall be relieved of all liability to Tenant for the return of the Security Deposit, and Tenant shall look solely to the new owner or lessor for the return of the Security Deposit.
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8. Keys and Locks . Landlord shall furnish Tenant with two (2) keys for each standard lockset on code required doors entering the Premises from public areas. Additional keys will be Tenants responsibility and at Tenants expense. All such keys shall remain the property of Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord all keys to any locks on doors entering or within the Premises, and give to Landlord the explanation of the combination of all locks for safes, safe cabinets and vault doors, if any, in the Premises.
9. Parking . Landlord shall provide approximately 20 parking spaces on the Premises for Tenants use.
10. Entry for Repairs and Inspection . Tenant shall permit Landlord and its contractors, agents or representatives to enter into and upon any part of the Premises during reasonable hours to inspect the same; perform maintenance and make repairs, replacements or improvements as set forth under this Lease; and, upon reasonable prior notice to Tenant, for the purpose of showing the Premises to prospective tenants or purchasers. Landlord shall use its reasonable efforts not to interfere materially with the operation of Tenants business during any such entry.
11. Laws and Regulations; Encumbrances . Tenant shall comply with, and Tenant shall cause its employees, contractors and agents to comply with, and shall use its best efforts to cause its visitors and invitees to comply with the following, to the extent Tenant has been made aware thereof: (i) all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the use, condition or occupancy of the Premises; and (ii) all recorded easements, operating agreements, parking agreements, declarations, covenants and instruments encumbering the Premises. Copies of all documents described above must be provided to Tenant by Landlord upon Landlord receiving written request from Tenant for the specific documents. Landlord warrants that to Landlords knowledge, no such ordinances or other matters of record prohibit Tenants use of the Premises as a branch banking facility.
12. Hazardous Substances . Tenant shall comply, at its sole cost and expense, with all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the protection of public health, safety, welfare or the environment (collectively, Environmental Laws) in the use, occupancy and operation of the Premises. Tenant agrees that no Hazardous Substances (defined below) shall be used, located, stored or processed on the Premises by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees, and no Hazardous Substances will be released or discharged from the Premises. The term Hazardous Substances shall mean and include all hazardous and toxic substances, waste or materials, any pollutant or contaminant, including, without limitation, PCBs,
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asbestos and raw materials that include hazardous constituents or any other similar substances or materials that are now or hereafter included under or regulated by any Environmental Laws or that would pose a health, safety or environmental hazard. Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against any and all losses, liabilities (including, but not limited to, strict liability), damages, injuries, expenses (including, but not limited to, court costs, litigation expenses, reasonable attorneys fees and costs of settlement or judgment), suits and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person, entity or governmental agency for, with respect to, or as a direct or indirect result of, the presence in or the escape, leakage, spillage, discharge, emission or release from the Premises of any Hazardous Substances by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees. Tenant shall not be responsible for any Hazardous Substances located on the Premises prior to the date Landlord delivers the Premises to Tenant.
13. Taxes and Assessments .
a. Tenant shall pay all taxes, license fees, and special charges and assessments levied by any taxing authorities against personal property which Tenant owns and/or uses within, upon, or about the Premises, or by reason of the conduct and operation of its business thereon, including, without limitation, any special assessments or charges for water and/or sewers.
b. Tenant shall also pay any and all ad valorem real estate taxes on the Premises and any personal property taxes assessable on any personal property located on the Premises on or before the same are due to the taxing authority. Landlord shall forward all ad valorem tax bills for the Premises to Tenant immediately upon receipt. Landlord shall have the right to pay such taxes before they become delinquent if Tenant has not paid as required under this Lease, and such payment on Tenants behalf shall be immediately payable to Landlord by Tenant as Additional Rental.
c. Notwithstanding the foregoing, Tenant shall have no obligation under this Lease to pay: (i) income, profits, intangible, documentary stamps, franchise, corporate, capital stock, succession, estate, gift or inheritance taxes; (ii) any assessment or additional tax associated with a change in ownership of the Premises; or (iii) governmentally imposed impact fees related to further improvement of the Premises, including, but not limited to, the widening of exterior roads, the installation of or connection to sewer lines, sanitary and storm drainage systems and other utility lines and installations.
d. Tenant shall indemnify Landlord against all taxes (on personal property and real property), licenses fees, special charges and assessments paid for by Landlord on Tenants behalf, and Tenant shall indemnify Landlord against all costs and expenses (including attorney fees) in connection with same. Amounts due Landlord hereunder shall be Additional Rental.
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e. Tenant may at its sole cost and expense, and in its own name and/or in the name of Landlord, dispute and contest any of the above-described taxes, license fees, special charges, assessments and/or ad valorem real estate taxes by appropriate proceedings diligently conducted in good faith, but only after Tenant has deposited with Landlord or with an applicable competent authority, in Tenants reasonable discretion, the amount so contested and unpaid which shall be held by Landlord (if Landlord is so chosen to hold such deposited funds) in an interest-bearing account until the termination of the proceedings, at which time the amount deposited shall be applied by Landlord toward the payment of the items held valid (plus any court costs, interest, penalties and other liabilities associated with the proceedings), and Tenants share of any excess shall be returned to Tenant. Tenant shall indemnify, defend and hold harmless Landlord from and against any cost, damage or expense, including attorneys fees, actually and reasonably incurred by Landlord, as Additional Rental, in connection with any such proceedings.
14. Leasehold Improvements .
a. Following completion of Landlords Work (defined in Exhibit C hereto) and Tenants acceptance of the Premises from Landlord, subject to the punch list items and latent defects identified in accordance with Section 1(b) above, Tenant accepts the same AS IS without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements except as expressly set forth in this Lease. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS OR TO LANDLORDS WORK, AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE PREMISES, INCLUDING WITHOUT LIMITATION THOSE OF SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY NEGATED AND WAIVED.
b. Tenant shall be entitled to a Tenant Improvement Allowance (defined and set forth in Exhibit C ). Notwithstanding the Tenant Improvement Allowance, Tenant agrees that it will make no exterior or structural alterations or additions to the Premises nor post or attach or affix to the exterior of the Premises, any signs, air conditioners or other objects without memorializing such proposed alterations, attachments, or fixtures in a Tenant work letter (in form acceptable to Landlord) and obtaining Landlords prior written consent to same. Notwithstanding the foregoing, Tenant shall have the right to make interior, non-structural alterations to the Premises without Landlords consent, so long as such alterations do not (i) affect the structure or electrical, plumbing, or mechanical systems of the Premises; or (ii) decrease the value of the Premises. Except as may be covered by Tenants Improvement Allowance, Tenant shall be responsible for the cost of such alterations or signs. Tenant shall have the right to install its trade fixtures and equipment in, upon and about the Premises; provided, however, that Tenant shall remove the same on or before the expiration of this Lease, and if so requested by Landlord, promptly after any termination of this Lease; and provided, further, that Tenant shall promptly thereafter repair all damage caused to the Premises by reason of such installation or removal.
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c. Tenant shall indemnify and hold Landlord harmless from and against all costs (including reasonable attorneys fees and costs of suit), losses, liabilities, or causes of action arising out of or relating to any alterations, additions or improvements made by Tenant to the Premises, including, but not limited to, work not completed in a workmanlike manner and any contractors, mechanics or materialmans liens asserted in connection therewith. This indemnification obligation shall survive the Term of this Lease.
d. Should any contractors, mechanics or other liens be filed against any portion of the Premises by reason of Tenants acts or omissions or because of a claim against Tenant, Tenant shall cause the same to be canceled or discharged of record by bond or otherwise within thirty (30) days after notice by Landlord. If Tenant shall fail to cancel or discharge said lien or liens, within said thirty (30) day period, Landlord may, at its sole option, cancel or discharge the same and upon Landlords demand, Tenant shall promptly reimburse Landlord for all reasonable costs incurred in canceling or discharging such liens, including attorney fees in connection with same.
15. Maintenance and Repairs to the Premises . Following completion of Landlords Work, but subject to any punch list items, latent defects, or other defects expressly covered by any warranty under this Lease, Tenant shall make and pay for any and all repairs or replacements to any and all portions of the interior and exterior of the Premises which are necessary to keep the same in a good state of repair or condition, such as, but not limited to, the roof and all structural members of the building, all fixtures, furnishings, lighting, air conditioning, plumbing, heating, electrical, floors, walls, ventilation systems, and any and all other parts of the building or other portions of the Premises. The parking lot, landscaping, plantings, and the exterior of the Premises will be maintained by the HOA in a good and neat condition at all times, and this expense shall be paid by Tenant. Tenant shall perform all maintenance, repairs, replacements and improvements required by any governmental law, ordination, rule or regulation. Notwithstanding anything in this Lease to the contrary, Tenant shall not be required to construct or install any item that is capital in nature, unless the need for such installation or construction is caused by Tenants negligence or willful misconduct. Without limiting Tenants maintenance and repair obligations hereunder, in the event Tenant fails to commence, within ten (10) days after written notice from Landlord to Tenant, or to diligently complete, any maintenance, repairs, replacements or improvements necessitated by Tenants negligence or willful conduct, or necessitated by Tenants waste of the Premises, Landlord may, at its option, perform any such maintenance, repairs, replacements or improvements deemed necessary by Landlord, and Tenant shall pay to Landlord on demand Landlords cost thereof, plus an administrative fee of ten percent (10%) of such costs as Additional Rental. As used in this Section 15, any requirement to maintain the Premises in a good state of repair or condition shall mean maintenance of the Premises in as good a condition as existed upon the initial completion of the improvements on the Premises, reasonable wear and tear and damage by casualty excepted.
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16. Condemnation . If all or substantially all of the Premises, or such portion of the Premises as would render, in Landlords reasonable judgment, the continuance of Tenants business from the Premises impracticable, shall be permanently taken or condemned for any public purpose, then Landlord or Tenant may terminate this Lease. If less than all or substantially all of the Premises shall be taken, then Landlord shall have the option of terminating this Lease by written notice to Tenant within ten (10) days following the date of such condemnation or taking. If this Lease is terminated as provided above, this Lease shall cease and expire as of the date of the taking. In the event that this Lease is not terminated and a portion of the Premises is taken, Tenant shall pay the Base Rental and Additional Rental up to the date of the taking, and this Lease shall thereupon cease and terminate with respect to the portion of the Premises so taken. Thereafter the Base Rental and Additional Rental shall be adjusted on an equitable basis. If this Lease is not terminated, Landlord shall promptly repair the Premises building to an architectural unit, fit for Tenants occupancy and business; provided, however, that Landlords obligation to repair hereunder shall be limited to the extent of the net proceeds from such taking made available to Landlord for such repair. However, in the event such proceeds are not sufficient to restore the Premises to a condition reasonably suitable for the operation of Tenants business, Tenant may terminate this Lease, at the time Landlord notifies Tenant of the extent to which the Premises will be restored. In the event of any temporary taking or condemnation for any public purpose of the Premises or any portion thereof, this Lease shall continue in full force and effect except that Base Rental and Additional Rental shall be adjusted on an equitable basis for the period of such taking, and Landlord shall be under no obligation to make any repairs or alterations. In the event of any taking of the Premises, Tenant hereby assigns to Landlord the value of all or any portion of the unexpired term of the Lease and all leasehold improvements, and Tenant shall not assert a claim for a condemnation award therefor; provided, however, Tenant may pursue a separate award from the condemning authority for (a) relocation and moving expenses, and (b) compensation for loss of Tenants business.
17. Fire or Casualty . If the building or any improvement on the Premises shall be damaged in any way, in whole or in part, or rendered untenantable by fire or other casualty, Tenant shall restore the building to its original condition. Rent shall not abate or be reduced following any casualty loss or during any period of restoration. It shall be Tenants responsibility to obtain business interruption insurance coverage to insure against any loss Tenant may suffer as a result of any casualty damage to the Premises as well as Tenants inability to use all or any part of the Premises as a result of such casualty.
18. Insurance .
a. Liability Insurance . Tenant shall, during the entire term hereof keep in full force and effect a policy or policies of public liability, personal and property damage insurance with
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respect to the Premises, in which the limits shall be not less than $2,000,000 in the aggregate, and $1,000,000 per occurrence. Such amounts shall be increased every three (3) years based on any increase in the Consumer Price Index-All Urban during such 3-year period. The policies shall name Landlord and any lender of Landlord as an additional insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving all additional insureds thirty (30) days prior written notice. The insurance shall be with an insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance together with proof of premium payment, shall be delivered to Landlord initially and at each renewal hereof.
b. Fire and Casualty Insurance . Landlord agrees to keep in full force and effect a policy or policies or broad form, all risk coverage insurance, in amounts not less than eighty percent (80%) of the reasonable reproduction or replacement value of the Premises improvements (including all buildings and structures thereon, and all portions thereof), determined annually, and with no reduction for depreciation, use, wear and tear. Landlord shall obtain at least three (3) separate bids for such insurance (which bids shall be for the same coverage and on comparable terms and conditions), and the least expensive policy shall be selected. With respect to damage or destruction of Premises improvements, which damage or destruction is covered, in whole or in part, by insurance, it is agreed that the proceeds from such insurance which are paid to Landlord shall be used and applied exclusively for the purpose of making replacements or repairs, if and only if such proceeds are sufficient in amount to complete such necessary replacements or repairs, which are paid to Landlord are insufficient therefor, Landlord will provide the deficiency, it being the intent of the parties hereto that Landlord shall have the obligation to rebuild, reconstruct or replace the Premises improvements damaged or destroyed by fire or other casualty with improvements of equal value, whether such casualty shall be insured or not insured against, and whether the proceeds of any such insurance are paid to Landlord. The insurance shall be with a good and A-rated insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance together with proof of premium payment, shall be delivered to Tenant initially and at each renewal thereof For the first calendar year of the Term, Tenant shall pay to Landlord, on or before the Commencement Date, the total cost of such fire and casualty insurance for such period of time. For calendar years following the first calendar year of the Term, Tenant shall pay to Landlord, in advance of such calendar year, Landlords total estimated cost of such fire and casualty insurance for such upcoming calendar year. Within one hundred twenty (120) days following the expiration of each calendar year, the estimated cost of such fire and casualty insurance shall be reconciled against the actual cost of such insurance, and any deficiency shall be payable by Tenant to Landlord within ten (10) days following demand. If such reconciliation reveals an overpayment by Tenant, such excess shall be credited against the next installment of Rent due hereunder or, if the Term has then expired, such excess shall be refunded to Tenant within ten (10) days following demand. All amounts due Landlord under this section shall be Additional Rental.
19. Damages from Certain Causes . Landlord shall not be liable or responsible to Tenant for any loss or damage to any property or person occasioned by theft, fire, act of God, public
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enemy, riot, strike, insurrection, war, act or omission of any party other than Landlord, any nuisance or interference caused or created by any property owner other than Landlord, requisition or order of governmental body or authority, court order or injunction, or any cause beyond Landlords control or for any damage or inconvenience which may arise through repair or alteration of any part of the Premises as required by this Lease.
20. Hold Harmless .
a. Landlord shall not be liable to Tenant, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission or neglect of Tenant. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Tenant agrees to indemnify, defend by counsel reasonably acceptable to Landlord and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from Tenants occupancy of the Premises, or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or due to any other act or omission or willful misconduct of Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees.
b. Tenant shall not be liable to Landlord, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission or neglect of Landlord. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Landlord agrees to indemnify, defend by counsel reasonably acceptable to Tenant and hold Tenant harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease, or due to any other grossly negligent act or omission or willful misconduct of Landlord or any of its agents or employees.
21. Default and Remedies .
a. | The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an Event of Default): |
i) | Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant; |
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ii) | Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenants business in the Premises); |
iii) | Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease; |
iv) | Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease; |
v) | Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant; |
vi) | Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure; |
vii) | The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing; |
viii) | Tenant or any guarantor of Tenants obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; |
ix) | A trustee or receiver is appointed for Tenant, any guarantor of Tenants obligations under this Lease or for a major part of either partys property and is not discharged within sixty (60) days after such appointment; |
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x) | Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenants obligations under this Lease, or (B) against Tenant or any guarantor of Tenants obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or |
xi) | Tenants repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months. |
b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenants part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlords actual cost incurred, on demand. |
ii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises. |
iii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. |
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iv) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. |
v) | Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. |
vi) |
The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All |
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remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity. |
vii) | No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant. |
(c) In the event Landlord fails to perform any of its obligations under this Lease and such non-performance continues for a period of thirty (30) days following written notice of default from Tenant, Landlord shall be deemed to be in material default of this Lease, and Tenant shall have all remedies available at law, in equity or under this Lease; provided, however, that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Landlord commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure.
22. Late Payments . In the event any installment of any Rental owed by Tenant hereunder is not paid within 10 days, Tenant shall pay a late charge equal to the greater of $100.00 or five percent (5%) of the amount due. The parties agree that such charge is a fair and reasonable estimate of Landlords administrative expense incurred on account of late payment. Should Tenant make a partial payment of past due amounts, the amount of such partial payment shall be applied first to reduce all accrued and unpaid late charges, in inverse order of their maturity, and then to reduce all other past due amounts, in inverse order of their maturity.
23. Attorneys Fees . If either party initiates any action to enforce its rights under this Lease or the terms hereof, the prevailing party shall be entitled to collect from the other party all court costs, reasonable attorneys fees and litigation expenses, including, but not limited to, costs of depositions and expert witnesses, that the prevailing party actually incurs in connection with such action.
24. No Waiver of Rights . No failure or delay of Landlord to exercise any right or power given it herein or to insist upon strict compliance by Tenant of any obligation imposed on it herein and no custom or practice of either party hereto at variance with any term hereof shall constitute a waiver or a modification of the terms hereof by Landlord or any right it has herein to demand strict compliance with the terms hereof by Tenant. No waiver of any right of Landlord or any default by Tenant on one occasion shall operate as a waiver of any of Landlords other rights or
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of any subsequent default by Tenant. No express waiver shall affect any condition, covenant, rule, or regulation other than the one specified in such waiver and then only for the time and in the manner specified in such waiver. No person has or shall have any authority to waive any provision of this Lease unless such waiver is expressly made in writing and signed by an authorized officer of Landlord.
25. Holding Over . In the event of holding over by Tenant after expiration or termination of this Lease without the written consent of Landlord, Tenant shall pay as rent for such holdover period one hundred fifty percent (150%) of the Rental that would have been payable if this Lease had not so terminated or expired). No holding over by Tenant after the term of this Lease shall be construed to extend this Lease, and Tenant shall be deemed a tenant at will, terminable on five (5) days notice from Landlord. In the event of any unauthorized holding over, Tenant shall indemnify Landlord against all claims for damages by any other tenant to whom Landlord shall have leased all or any part of the Premises effective upon the termination of this Lease.
26. Subordination .
a. If this Lease (and all its terms and conditions) shall become subject and subordinate to any mortgages or deeds of trust covering the Premises, whether or not for the full amount of all advances made or to be made thereunder and without regard to the time or character of such advances, the holder of any such mortgage or deed of trust (any of the foregoing, a Holder), shall execute a subordination, non-disturbance and attornment agreement in form and content reasonably acceptable to Tenant and such mortgagee providing (in part) that as long as an event of default on the part of Tenant is not in existence, Tenant shall not be disturbed in its possession of the Premises or have its rights hereunder terminated or modified by such mortgagee, except pursuant to the provisions of this Lease.
b. Tenant agrees that if Landlord defaults in the performance or observance of any covenant or condition of this Lease required to be performed or observed by Landlord hereunder, Tenant will give written notice specifying such default by certified or registered mail, postage prepaid, to any Holder of which Tenant has been notified in writing, and before Tenant exercises any right or remedy which it may have on account of any such default of Landlord, such party shall have the same amount of time as is afforded Landlord to cure such default of Landlord. Whether or not any deed of trust or mortgage is foreclosed, or any Holder succeeds to any interest of Landlord under this Lease, no Holder shall have any liability to Tenant for any security deposit paid to Landlord by Tenant hereunder, unless such security deposit has actually been received by such Holder. No Holder of which Tenant has been notified, in writing, shall be bound by any amendment or modification of this Lease made without the written consent of such Holder, nor shall any such party be liable for any defaults of Landlord under this Lease.
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27. Estoppel Certificate . Tenant agrees that, from time to time upon request by Landlord, or any existing or prospective mortgagee or ground lessor, Tenant will complete, execute and deliver a written estoppel certificate certifying (a) that this Lease is unmodified and is in full force and effect (or if there have been modifications, that this Lease, as modified, is in full force and effect and setting forth the modifications); (b) the amounts of the monthly installments of Base Rental, Additional Rental and other sums then required to be paid under this Lease by Tenant; (c) the date to which the Base Rental, Additional Rental and other sums required to be paid under this Lease by Tenant have been paid; (d) that Landlord is not in default under any of the provisions of this Lease, or if in default, the nature thereof in detail and what is required to cure same; and (e) such other information concerning the status of this Lease or the parties performance hereunder reasonably requested by Landlord or the party to whom such estoppel certificate is to be addressed.
28. Sublease or Assignment by Tenant .
a. The Tenant shall not, without the Landlords prior written consent, (i) assign, convey, mortgage, pledge, encumber, or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenants interest hereunder; (iii) sublet the Premises or any part thereof; or (iv) permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant or Tenants subsidiaries. Any attempt to consummate any of the foregoing without Landlords consent shall be void and of no force or effect. For purposes hereof, the transfer of the ownership or voting rights in a controlling interest of the voting stock of Tenant (if Tenant is a corporation) or the transfer of a general partnership interest or a majority of the limited partnership or membership interest in Tenant (if Tenant is a partnership or limited liability company), at anytime throughout the term of this Lease, shall be deemed to be an assignment of this Lease.
b. For any proposed assignment or subletting Tenant shall submit to Landlord a copy of the proposed sublease or assignment, and such additional information concerning the business, reputation and creditworthiness of the proposed sublessee or assignee as shall be sufficient to allow Landlord to form a commercially reasonable judgment with respect thereto. If Landlord approves any proposed sublease or assignment, Landlord shall receive from Tenant as Additional Rental fifty percent (50%) of any rents or other sums received by Tenant pursuant to said sublease or assignment in excess of the rentals payable to Landlord by Tenant under this Lease (after deducting all of Tenants reasonable costs associated therewith, including reasonable brokerage fees and the reasonable cost of remodeling or otherwise improving the Premises for said sublessee or assignee), as such rents or other sums are received by Tenant from the approved sublessee or assignee. Landlord may require that any rent or other sums paid by a sublessee or assignee be paid directly to Landlord.
c. Notwithstanding the giving by Landlord of its consent to any subletting, assignment or occupancy as provided hereunder or any language contained in such lease, sublease or
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assignment to the contrary, unless this Lease is expressly terminated by Landlord, Tenant shall not be relieved of any of Tenants obligations or covenants under this Lease and Tenant shall remain fully liable hereunder.
d. Notwithstanding anything in this Lease to the contrary, so long as Tenant remains jointly and severally liable for all of its obligations under this Lease, Tenant shall have the right, without Landlords consent, to assign or transfer its interest in this Lease: (i) in connection with a merger or reorganization of Tenant or a sale of all or substantially all of Tenants assets (so long as such assignee expressly assumes all of Tenants obligations under this Lease in writing); (ii) to an entity wholly or partially owned or controlled by, or under common control with, Tenant; or (iii) to an entity whose (A) net worth is equal to or greater than the greater of the net worth or Tenant (1) on the date of this Lease or (2) at the time of such assignment; and (B) use of the Premises will be for banking and financial services; general business office use; or any other reputable business activity approved by Landlord in its reasonable discretion.
29. Quiet Enjoyment . Landlord covenants that Tenant shall and may peacefully have, hold and enjoy the Premises free from hindrance by Landlord or any person claiming by, through or under Landlord but subject to the other terms hereof, provided that Tenant pays the Base Rental, Additional Rental, and any other sums herein recited to be paid by Tenant and performs all of Tenants covenants and agreements herein contained. It is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and its successors only with respect to breaches occurring during the ownership of the Landlords interest hereunder.
30. Assignment by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder, in the Premises, and in such event and upon such transfer no further liability or obligation shall thereafter accrue against Landlord hereunder.
31. Limitation of Landlords Personal Liability . Tenant specifically agrees to look solely to Landlords equity interest Premises for the recovery of any monetary judgment against Landlord, it being agreed that Landlord (and its partners, members and shareholders) shall never be personally liable for any such judgment. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlords successors-in-interest or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.
32. Force Majeure . Landlord and Tenant (except with respect to the payment of Base Rental or Additional Rental or any other monetary obligation under this Lease) shall be excused for the period of any delay and shall not be deemed in default with respect to the performance of any
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of the terms, covenants and conditions of this Lease when prevented from so doing by a cause or causes beyond the Landlords or Tenants (as the case may be) control (excluding financial inability to perform), which shall include, without limitation, all labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain any material or services, acts of God, or any other cause not within the reasonable control of Landlord or Tenant (as the case may be).
33. Surrender of Premises . Upon the termination of this Lease by lapse of time or otherwise or upon the earlier termination of Tenants right of possession, Tenant shall quit and surrender possession of the Premises (including all leasehold improvements made or installed by Tenant or by Landlord) to Landlord, broom clean, in the same condition as upon delivery of possession to Tenant hereunder, normal wear and tear excepted. Before surrendering possession of the Premises, Tenant shall, without expense to Landlord, remove all signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises and all debris and rubbish, and Tenant shall repair all damage to Premises resulting from such removal. If Tenant fails to remove any of the signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises by the expiration of the Term or earlier termination of this Lease, then Landlord may, at its sole option, (i) deem any or all of such items abandoned and the sole property of Landlord; or (ii) remove any and all such items and dispose of same in any manner. Tenant shall pay Landlord on demand any and all expenses incurred by Landlord in the removal of such items, including, without limitation, the cost of repairing any damage to the Premises caused by such removal and storage charges (if Landlord elects to store such property).
34. Notices . Any notice or other communications required or permitted to be given under this Lease must be in writing and shall be effectively given or delivered if (a) hand delivered to the addresses for Landlord and Tenant stated below, (b) sent by certified or registered United States Mail, return receipt requested, to said addresses, (c) sent by nationally recognized overnight courier (such as Federal Express, UPS Next Day Air or Airborne Express), with all delivery charges paid by the sender and signature required for delivery, to said address; or (d) sent by facsimile to the facsimile numbers for Landlord and Tenant stated below and actually received, as evidenced by facsimile confirmation report, by Landlord or Tenant, as the case may be. Any notice mailed shall be deemed to have been given upon receipt or refusal thereof. Notice effected by hand delivery shall be deemed to have been given at the time of actual delivery. Either party shall have the right to change its address to which notices shall thereafter be sent and the party to whose attention such notice shall be directed by giving the other party notice thereof in accordance with the provisions of this Section.
Landlord: |
Berry Farms Real Estate Partners, LLC 320 Main Street, Suite 230 Franklin, Tennessee 37064 Facsimile: (615) 794-7910 |
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Tenant: |
Franklin Synergy Bank 722 Columbia Avenue Franklin, Tennessee 37064 Facsimile: (615) 236-4639 |
35. Miscellaneous .
a. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord, and shall be binding upon and inure to the benefit of Tenant, its successors, and, to the extent assignment may be approved by Landlord hereunder, Tenants assigns.
b. All rights and remedies of Landlord and Tenant under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Lease is declared to be a Tennessee contract, and all of the terms hereof shall be construed according to the laws of the State of Tennessee.
c. This Lease may not be altered, changed or amended, except by an instrument in writing executed by all parties hereto.
d. If Tenant is a corporation, partnership, limited liability company or other entity, Tenant warrants that all consents or approvals required of third parties (including but not limited to its Board of Directors, partners or members) for the execution, delivery and performance of this Lease have been obtained and that Tenant has the right and authority to enter into and perform its covenants contained in this Lease.
e. To the extent permitted by applicable law, the parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the relationship of landlord and tenant, Tenants use or occupancy of the Premises and/or any claim of injury or damage. In the event Landlord commences any proceedings for nonpayment of rent or any other amounts payable hereunder, Tenant shall not interpose any counterclaim of whatever nature or description in any such proceeding, unless the failure to raise the same would constitute a waiver thereof. This shall not, however, be construed as a waiver of Tenants right to assert such claims in any separate action brought by Tenant.
f. If any term or provision of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and shall be enforceable to the extent permitted by law.
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g. Time is of the essence in this Lease.
h. Tenant represents and warrants to Landlord that Tenant did not deal with any broker in connection with this Lease. Tenant shall indemnify, defend and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, without limitation, court costs, reasonable attorneys fees and litigation expenses) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such other broker or brokers or finders claiming to have dealt with Tenant in connection with this Lease or with whom Tenant hereafter deals or whom Tenant employs.
i. If Tenant comprises more than one person, corporation, partnership, limited liability company or other entity, the liability hereunder of all such persons, corporations, partnerships or other entities shall be joint and several.
j. Landlords receipt of any monetary amount due hereunder (including Base Rental and Additional Rental) payable by Tenant hereunder with knowledge of the breach of a covenant or agreement contained in this Lease shall not be deemed a waiver of the breach. No acceptance by Landlord of a lesser amount than the full and complete installment of monetary amount due under this Lease (including Base Rental and Additional Rental) which is due shall be considered, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed, an accord and satisfaction. Landlord may accept a check or payment without prejudice to Landlords right to recover the balance due or to pursue any other remedy provided in this Lease.
k. Submission of this instrument for examination shall not constitute a reservation of or option to lease the Premises or in any manner bind Landlord, and no lease or obligation on Landlord shall arise until this instrument is signed and delivered by Landlord and Tenant.
l. Any claim, cause of action, liability or obligation arising under the term of this Lease and under the provisions hereof in favor of a party hereto against or obligating the other party hereto and all of Tenants indemnification obligations hereunder shall survive the expiration or any earlier termination of this Lease.
[Signature page follows.]
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IN WITNESS WHEREOF , the parties hereto have executed and sealed this Lease as of the date aforesaid.
LANDLORD: | ||
BERRY FARMS REAL ESTATE PARTNERS, LLC | ||
By: |
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Title: |
Managing Partner |
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TENANT: | ||
FRANKLIN SYNERGY BANK | ||
By: |
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Title: |
Sr VP/Asst CFO |
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EXHIBIT A
Description of Premises
All that tract or parcel of land in Williamson County, Tennessee, and being more particularly described as follows:
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EXHIBIT B
Form of Commencement Agreement
COMMENCEMENT AGREEMENT
THIS COMMENCEMENT AGREEMENT (this Agreement), made and entered into as of this day of , 2013, is by and between BERRY FARMS REAL ESTATE PARTNERS, LLC , a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK , a Tennessee banking corporation (Tenant).
A. Tenant and Landlord entered into that certain Triple Net Office Lease Agreement dated (the Lease), for certain improved real property municipally known as located in Franklin, Williamson County, Tennessee, consisting of approximately rentable square feet, being more particularly described in the Lease; and
B. The parties desire to precisely establish the Commencement Date as set forth below.
NOW, THEREFORE, in consideration of the mutual and reciprocal promises herein contained, and pursuant to Section 2 of the Lease, Tenant and Landlord hereby agree that the Lease is hereby modified as follows:
1. The term of the Lease by and between Landlord and Tenant actually commenced on (the Commencement Date).
2. Base Rental for the First Year of the Term shall be:
Year |
Per Square Foot First Floor |
Total Per Annum |
Total Per Month |
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1 | TBD | TBD | TBD |
3. Except as modified and amended by this Agreement, the Lease shall remain in full force and effect.
[Signature page follows.]
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IN WITNESS WHEREOF , Landlord and Tenant have caused this Agreement to be duly executed, as of the day and year first above written.
LANDLORD: | TENANT: | |||||||
BERRY FARMS REAL ESTATE PARTNERS, LLC | FRANKLIN SYNERGY BANK | |||||||
By: |
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By: |
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Title: |
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Title: |
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EXHIBIT C
Landlords Work and Tenant Improvement Allowance
Landlords Work
Before the Commencement Date, Landlord shall complete on the Premises construction of the one-story, warm white box building shown on the plans and drawings attached hereto as Exhibit C-1 , consisting of approximately 3,000 to 3,500 square feet and shall include base electrical, plumbing, and mechanical systems (the Landlords Work). Landlord anticipates that Landlords Work shall be complete by May 1, 2013, but Landlord does not guarantee this anticipated completion date and Tenant represents and warrants that it is not relying on this anticipated completion date. Notwithstanding the foregoing, if Landlords Work is not complete by September 1, 2013, Tenant shall have a continuing right to terminate this Lease upon written notice to Landlord, in which event neither party shall have any further obligation to the other hereunder.
Landlord warrants to Tenant that Landlords Work shall be completed (i) in a good and workmanlike manner and (ii) in accordance with the requirements of all applicable laws, codes and ordinances of governmental authorities having jurisdiction over the Premises. Landlord further hereby assigns to Tenant all third-party warranties granted to Landlord in connection with Landlords Work.
Tenant Improvement Allowance
Following completion of Landlords Work and delivery of the Premises to Tenant, Landlord shall provide Tenant with an improvement allowance (the Tenant Improvement Allowance) of $30 per square foot of the building constructed under Landlords Work. The Tenant Improvement Allowance shall be payable to Tenant no earlier than the Commencement Date.
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EXHIBIT C-1
Building Plans and Drawings
[See attached.]
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Exhibit 10.3
LEASE AGREEMENT
THIS LEASE AGREEMENT (sometimes herein this Lease ) is made and entered into as of the 12 th day of December, 2012, by and between FIRST FARMERS AND MERCHANTS BANK ( Landlord ), and FRANKLIN SYNERGY BANK ( Tenant ).
1. Leased Premises . Subject to and upon the terms hereinafter set forth, and in consideration of the sum of Ten Dollars ($10.00) and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease and take from Landlord, ONE THOUSAND NINE HUNDRED FIFTY (1,950±) rentable square feet of the building (the Building ) located on certain real property in Spring Hill, Williamson County, Tennessee, such real property (the Real Property ) being more particularly described on Exhibit A attached hereto and incorporated herein by this reference, the leased space being located within the portion of the Building having an address of 2035 Wall Street, Spring Hill, Tennessee 37174, such leased space being shown on the drawing attached hereto as Exhibit A-1 and incorporated herein by this reference (the Premises ), together with the nonexclusive right to use the parking areas and driveway areas located on the Real Property. As used in this Lease, the term Project shall mean the Real Property and all improvements now or hereafter located thereon, including the Building of which the Premises is a part, which Building contains approximately 21,560 rentable square feet, and the driveways and parking areas located on the Real Property.
2. Option for Additional Space . Provided Tenant is not in default of any of the terms and conditions of this Lease, during the initial lease term, the Tenant shall have the right of first offer on the adjacent spaces (totaling approximately SEVEN THOUSAND THREE HUNDRED (7,300±) rentable square feet of space as shown in the shaded area on the attached Exhibit A. In such event Landlord receives an offer to lease such space from a third party, Landlord shall deliver written notice thereof to Tenant. Tenant must notify the Landlord within ten (10) days of issuance of such notice if it desires to exercise its option to lease the adjacent space. If Tenant timely notifies the Landlord that it wishes to exercise its right of first offer, Landlord will prepare the appropriate Lease Amendment which will amend this lease by Tenant taking the additional square footage on an as-is basis at the same base per square feet rent rate as provided in the Lease Agreement for the balance of the lease term. If the Tenant fails to notify the Landlord within said ten (10) days or notifies the Landlord that it does not desire to exercise its option, then this right of first offer shall be null and void and of no further force or effect and Landlord shall be free to lease such space to other parties. In all events, Tenants right of first offer set forth in this paragraph shall expire on the last day of the initial lease term.
3. Delivery Date; As Is Condition . Tenant shall be entitled to take possession of the Premises upon the date of final execution by both parties of the lease (the Delivery Date). Except as otherwise expressly provided in this Lease, Tenant acknowledges that (i) no promise by or on behalf of Landlord or any of Landlords agents, partners or employees to alter, remodel, improve, repair, decorate or clean the Premises has been made to or relied upon by Tenant, (ii) no representation respecting the condition of the Premises by or on behalf of Landlord or any of Landlords agents, partners or employees has been made to or relied upon by Tenant, and (iii) the
Premises are leased to Tenant AS IS, WHERE IS, WITH ALL FAULTS, IF ANY, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, WHATSOEVER, EXPRESS OR IMPLIED.
4. Initial Term; Renewal Options .
(a) Subject to and upon the terms and conditions set forth herein, the initial term of this Lease shall be approximately Three (3) years and 15 days, commencing on the February 13, 2013, and expiring at midnight on March 31, 2016.
(b) Upon the expiration of the initial term of the Lease, provided Tenant shall not be in default in performance of the terms and provisions of the Lease, Tenant shall have an option to renew this Lease for the entire Premises for a Three (3) year renewal term. This option shall be exercised by Tenant giving written notice of its election to exercise such option to Landlord no later than the date six (6) months prior to the first day of such renewal period, which written notice shall be sent to Landlord as provided in paragraph 30 of the Lease.
5. Use . (a) The Premises are to be used and occupied solely for use as a banking/ financial services location. Tenant shall not use the Premises for any other purpose without Landlords consent. In no event shall Tenant use the Premises for any unlawful purpose, any purposes that violates Landlords exclusive or restricted uses in the shopping center at that time, or any use that constitutes a nuisance. The Premises shall not be used or occupied for any purpose or business that would increase the premiums payable in respect of the fire and casualty insurance maintained with respect to the Premises or that would effectuate a cancellation of such insurance. Tenant shall not maintain or permit any nuisance to occur on the Premises, nor shall Tenants use of the Premises interfere with the reasonable use of the shopping center or the common areas by other tenants. Tenant covenants and agrees that Tenant will use, maintain and occupy the Premises in a careful, safe and proper manner and will not commit waste thereon. Tenant shall cause its business within the Premises to be open for business continuously, from and after the Rent Commencement Date.
(b) So long as (i) Tenant is open for business and conducting operations, and (ii) no default has occurred and is continuing hereunder, Landlord shall not lease other space in the Project to any other tenant for the purpose of operating a retail banking location office without prior approval by Tenant.
6. Rent .
(a) Commencing on February 13, 2013 (Rent Commencement Date), and on the first (1 st ) day of each consecutive calendar month thereafter, Tenant agrees to pay monthly rent, in advance as follows:
(i)
Period |
Monthly Rent | |||
02/13/13 02/12/16 |
$ | 3,168.75 ($19.50 per Sq. Ft | ) |
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(ii) In the event that Tenant exercises its option to renew the Lease for the first renewal term described in paragraph 4(b) above, monthly rent for the Three Years of such renewal term shall be $3,493.75 ($21.50 per sq. ft).
(iv) All rent shall be payable at Landlords address as provided herein (or such other address as may be designated by Landlord from time to time). Rent for the first and last months shall be prorated as appropriate. All rent shall be due without notice, demand, deduction or setoff.
(v) For purposes hereof, the first Lease Year shall mean the period commencing on the Rent Commencement Date and ending on the last day of the twelfth (12 th ) full calendar month thereafter (it being acknowledged that the first Lease Year may be for a period longer than twelve (12) months), and each succeeding Lease Year thereafter shall commence immediately upon the expiration of the prior Lease Year and shall end on the last day of the 12 th calendar month thereafter.
(b) In the event any installment of any rental or additional rent owed by Tenant hereunder is not paid within five (5) days of the date when due, Tenant shall pay a late charge equal to the greater of $100.00 or five percent (5%) of the amount due. The parties agree that such charge is a fair and reasonable estimate of Landlords administrative expense incurred on account of late payment. Should Tenant make a partial payment of past due amounts, the amount of such partial payment shall be applied first to reduce all accrued and unpaid late charges, in inverse order of their maturity, and then to reduce all other past due amounts, in inverse order of their maturity. In addition, any installment of rent or additional rent that is not paid within five (5) days of when due shall bear interest at a rate equal to ten percent (10%) per annum (or the maximum rate allowed by law, if less) from the date such payment was due until the date on which it is paid.
(c) If any rent or additional rent is paid by check and such check is returned for non-sufficient funds or for any other reason, the same shall be considered as non-payment. All charges and sums due under this lease (other than monthly base rent) shall be considered additional rent and Landlord shall have the same remedies for failure to pay additional rent as it does with respect to monthly rent.
(d) In the event any sales, use or other tax shall now or hereafter be levied upon the rent payable by Tenant under this Lease by the State of Tennessee or any other governmental entity, all such taxes shall be paid by Tenant in addition to its obligations to pay rent hereunder.
(e) Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord FIVE THOUSAND SEVENTY EIGHT DOLLARS and 13/100 DOLLARS ($5,078.13) as prepayment of the partial first months and first full months base rent due under subparagraph 6(a) and the first months estimated payment of Tenants share of CAM Expenses under subparagraph 10(b).
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7. Security Deposit . Tenant, concurrently with the execution of this Lease has deposited the sum of THREE THOUSAND EIGHT HUNDRED EIGHTEEN and 75/100 DOLLARS ($3,818.75), the receipt of which is hereby acknowledged, which sum shall be retained by Landlord as a security deposit. The security deposit shall be held by Landlord without liability for interest and as a security for the performance by the Tenant of Tenants covenants and obligations under this Lease, it being expressly understood that such deposit shall not be considered an advance payment of rental or additional rent or a measure of Landlords damages in case of default by Tenant. Upon the occurrence of any event of default by Tenant, Landlord may, from time to time, without prejudice to any other remedy, use such deposit to the extent necessary to make good any arrearages of rent, additional rent, and any other damage, injury, expense, or liability caused to Landlord by such event of default. Following any such application of the security deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the security deposit to its original amount. If Tenant is not then in default hereunder, any remaining balance of such deposit shall be returned by Landlord to Tenant upon termination of the Lease. If Landlord transfers its ownership interest in the Building during the Lease term, Landlord may assign the security deposit to the new owner and thereafter shall have no further liability for the return of such security deposit.
8. [Intentionally Deleted]
9. [ Intentionally Deleted ] .
10. Common Area Expenses .
(a) Tenant shall, during the term of this Lease, beginning on the Term Commencement Date, pay to Landlord, in addition to the rent described in paragraph 6 above, an amount equal to the product of the CAM Expenses (as hereinafter defined) for each calendar year during the term of this Lease times Tenants Prorata Share Percentage (as hereinafter defined). For purposes of this Lease, Tenants Prorata Share Percentage shall mean 11.06%, which is the ratio of the rentable square footage of the Premises (1,950 square feet) to the rentable square footage of the buildings located on the Real Property (21,560 square feet). Tenants percentage will be adjusted accordingly if Tenant chooses to exercise its right of first option in paragraph 2 above. Landlord will make a good faith estimate prior to January 1 of each calendar year during the term of this Lease, or as soon thereafter as practical, and Tenant shall pay to Landlord with each payment of rent the estimated monthly amount of Tenants Prorata Share Percentage of the CAM Expenses for such period. By April 1 st of each calendar year during the term of this Lease and by April 1 st of the year following the year in which the term of this Lease expires or terminates, or as soon thereafter as practical, Landlord shall furnish to Tenant a statement of the actual CAM Expenses for the previous calendar year. If for any calendar year amounts collected under the terms of this paragraph 10(a) for the prior year, as a result of Landlords estimate of CAM Expenses, is in excess of the amount actually due from Tenant hereunder during such prior year, then Landlord shall credit to Tenants rental obligations any overpayment (or if Tenant has no further financial obligations under this Lease, then Landlord shall refund the overpayment). Likewise, Tenant shall pay to Landlord, on demand, any underpayment with respect to the prior year. Any payment to be made pursuant to this
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paragraph 10(a) with respect to the calendar year in which this Lease commences or expires or terminates shall be prorated if this Lease is not in force during the full calendar year. The payment made on the Term Commencement Date and/or the Rent Commencement Date pursuant to this paragraph 10(a) and any adjustment to such payment shall also be prorated if the Term Commencement Date and/or the Rent Commencement Date is not the first day of a month.
(b) As used in this Lease, the term CAM Expenses shall mean all costs and expenses incurred by Landlord in each calendar year of owning, operating, maintaining, repairing and managing the Project, including, without limitation: (i) all ad valorem taxes, (ii) all assessments, levies, general or special, assessed or imposed upon the Project, but only with respect to installments required to be paid during the term of this Lease, (iii) all premiums for public liability insurance and/or casualty insurance for the Project, (iv) all costs and expenses incurred by Landlord with respect to the Project for common area maintenance, exterior roof maintenance, non-separately metered utilities, storm water, mowing grass, landscaping, cleaning, removal of garbage and debris, exterior lighting, security, irrigation system maintenance, interior sprinkler maintenance and service, fire line inspection and maintenance and repairs, (v) the cost of all utilities that are not separately metered and billed directly to the tenants of the Building, and (vi) a management fee (whether payable to Landlord or an affiliate or a third party). Notwithstanding the foregoing, the term CAM Expenses does not include capital improvements, except the cost of capital improvements may be included in CAM Expenses so long as the same are amortized over the useful life of the item in question and only the portion thereof attributable to the current year is included in the CAM Expenses for the current year. It is understood that increases in CAM Expenses shall be capped at 5% annually.
11. Taxes and Utilities .
(a) Landlord shall pay all ad valorem taxes, assessments or levies, general or special, which may be assessed or imposed upon Landlords fee interest in the Project by any taxing authority or governmental agency with power to tax; provided, however, Tenant shall reimburse to Landlord a portion of such ad valorem taxes, assessments (including only installments of special assessments required to be paid during the term of this Lease) or levies, as set forth in paragraph 10(a) hereof. Tenant shall pay all ad valorem taxes, assessments or levies, general or special, which may be assessed or imposed upon Tenants leasehold interest in the Premises or upon any personal property of Tenant located at the Premises by any taxing authority or governmental agency with power to tax.
(b) Tenant shall pay directly to the appropriate supplier or reimburse the Landlord the cost of all separately metered utilities supplied to the Premises during the term of this Lease. Landlord shall pay to the appropriate supplier the cost of all utilities supplied to the Project which are not separately metered to the Premises or to other portions of the Project; provided, however, Tenant shall reimburse Landlord for a portion of the cost of such utilities not metered separately to the Project and paid by Landlord, as set forth in paragraph 7(a) hereof. To the extent that Landlord shall be billed for any such services by the provider thereof, Tenant shall reimburse Landlord for the amount thereof within fifteen (15) days of being furnished with a statement from Landlord with respect thereto.
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(c) Unless the same is caused solely by the willful misconduct of Landlord, Landlord shall not be liable to Tenant or to any other person for any damage occasioned by failure in any utility system or by the bursting or leaking of any vessel or pipe in or about the Premises or for any damage occasioned by water coming into the Premises, or arising from any act or neglect of occupants of adjacent property or the public.
12. Repairs and Maintenance .
(a) Except as otherwise expressly provided in paragraph 3 and subparagraph 12(b) below, Tenant, at Tenants sole cost and expense, shall keep and maintain all portions of the Premises (including nonstructural, interior portions, systems and equipment) at all times during the term hereof in good order, condition and repair as a first-class retail/commercial real property development (including interior repainting and refinishing, as needed), and shall be responsible for all maintenance to the same. Such repair and maintenance shall include, but not be limited to, all interior utility systems and equipment from the point of connection to the Building, including components of electrical, mechanical, plumbing, heating and air conditioning systems and facilities located in the Premises, all exterior and interior doors and door closures, and all plate glass located in the Premises. In addition, Tenant shall, at its expense, obtain from a HVAC service company designated by or reasonably satisfactory to Landlord and maintain during the term of this Lease a quarterly maintenance service contract on the HVAC unit that serves the Premises. If any portion of the Premises or any system or equipment in or serving the Premises which Tenant is obligated to repair cannot be fully repaired or restored, Tenant shall promptly replace such portion of the Premises or system or equipment in or serving the Premises, regardless of whether the benefit of such replacement extends beyond the term of this Lease; but if the benefit or useful life of such replacement extends beyond the term of this Lease (as such term may be extended by exercise of any options), the useful life of such replacement shall be prorated such that Tenant shall be liable only for that portion of the cost which is applicable to the term of this Lease (as extended). It is the intention of Landlord and Tenant that at all times Tenant shall maintain the portions of the Premises which Tenant is obligated to maintain in an attractive, first-class and fully operative condition. Tenant shall pay directly to the vendors all costs incurred by Tenant for the operation and maintenance of the Premises. At the expiration or earlier termination of this Lease, and subject to the provisions of paragraph 12(c) with respect to alterations or improvements to the Premises made by Tenant, Tenant shall return the Premises to the Landlord in as good condition as when received, ordinary wear and tear excepted. Notwithstanding the foregoing, Landlord shall assign and transfer all warranties for Tenants benefit in the event Tenant is required to promptly replace such portion of the Premises or system or equipment in or serving the Premises including but not limited to all interior utility systems and equipment from the point of connection to the Building, including components of electrical, mechanical, plumbing, heating and air conditioning systems and facilities located in the Premises.
(b) Notwithstanding the provisions of subparagraph 12(a) above, Landlord, at Landlords sole cost and expense, shall maintain in good order, condition and repair: (i) all structural elements of the Building, including, without limitation, the floor slab, footings, foundations, exterior walls (but excluding windows, doors, plate glass, skylights, entries, and the interior surfaces of exterior walls), roof structure, roof deck, and all utility lines from the point of
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connection in the street up to the point of connection to the Building, and (ii) subject to reimbursement as set forth in paragraph 10(a) , the parking areas and other common areas of the Project. Landlord shall not be obligated to make any such repairs unless Landlord shall have received written notice from Tenant of the need for such repairs, and Landlord shall have a reasonable period of time to make such repairs. Notwithstanding the foregoing, in no event shall Landlord be responsible for any repairs which are required to be made due to the acts of Tenant or Tenants agents, employees or invitees, all of such repairs to be made by Tenant at Tenants sole cost and expense. Further, Landlords liability with respect to any repairs for which Landlord is responsible under any of the provisions of this Lease shall be limited to the cost of such repairs.
13. Tenant Improvements; Other Alterations and Improvements; Signage .
(a) Tenant may improve the interior of the space to fit Tenants need. Tenant shall obtain Landlords written approval, which shall not be unreasonably withheld. Upon obtaining such written approval, Tenant, at Tenants sole cost and expense, may make such alterations and improvements to the Premises as Tenant may consider necessary or appropriate in order to reasonably adapt the same for its business purposes. Regardless of whether Landlords consent is required, all alterations and improvements shall be performed in a good and workmanlike manner and in accordance with all applicable laws, codes, regulations and ordinances, including, but not limited to, the requirements of the Americans with Disabilities Act, 42 U.S.C. §12101, et seq ., and the regulations thereunder (collectively, the ADA ). Prior to commencing any such alterations or improvements, Tenant shall obtain the written approval from Landlord of the final plans and specifications therefor, which approval shall not be unreasonably withheld, and upon obtaining such written approval, such alterations or improvements shall be performed strictly in accordance with the approved plans and specifications.
(b) Tenant shall be responsible for obtaining all required governmental approvals and permits for any alterations or improvements to the Premises to be undertaken by Tenant and shall indemnify and hold Landlord harmless from and against any and all liens by contractors, subcontractors, materialmen or laborers constructing or installing such alterations or improvements to the Premises and from and against any and all claims for damages by third parties including, without limitation, personal injury, arising out of the construction or installation of any such alterations or improvements to the Premises. In the event any lien is filed against the Project or the Premises, or any part thereof, for work claimed to have been done for or material claimed to have been furnished to Tenant, Tenant shall cause such lien to be discharged of record within thirty (30) days after filing by bonding or as provided or required by law or in any other lawful manner.
(c) At the expiration or earlier termination of this Lease, at the option of Landlord, either (i) the alterations and improvements made by Tenant that are affixed to the Premises (or such portion thereof as designated by Landlord) shall vest in and become the property of Landlord and shall not be removed by Tenant, or (ii) the alterations and
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improvements made by Tenant that are affixed to the Premises (or such portion of thereof as designated by Landlord) shall be removed by Tenant at Tenants expense and the Premises (or portion thereof) shall be returned by Tenant at Tenants expense to the same condition as in existence on the Delivery Date, ordinary wear and tear excepted. Such election shall be made by Landlord by serving written notice upon Tenant within thirty (30) days of the expiration or earlier termination of this Lease, as applicable. All non-affixed items, including personal property and equipment of Tenant, shall remain Tenants property at the expiration or earlier termination of this Lease and shall be removed by Tenant at Tenants expense; provided, however, to the extent such non-affixed items are not removed within ten (10) days after the expiration or earlier termination of this Lease, such non-affixed items shall vest in and become the property of Landlord and Landlord may remove, store and/or dispose of such property at Tenants expense (to be paid by Tenant upon demand).
(d) Tenant shall have the right, at its own expense, to: (i) install Tenants standard illuminated storefront signage at the Premises (ii) display Grand Opening banners at the Premises for the first two (2) months following the date Tenant opens for business, and (iii) place a sign panel on Landlords pylon/monument sign for the Project if space for such panel is available; provided, however, that all such signage shall (a) be subject to Landlords approval, which approval shall not be unreasonably withheld, and (b) comply in all respects with any restrictions imposed by zoning ordinances or other applicable law or by instruments of record. All exterior signage, other than temporary exterior signage as described in part (ii) of the preceding sentence, shall be considered an alteration and subject to all provisions of subparagraphs (a) and (b) above.
(e) Tenant shall have the right, at its sole cost and expense, to erect and maintain within the interior of its Premises all signs and advertising matter customary or appropriate in the conduct of Tenants business. Notwithstanding the foregoing, interior marquee-type signage which is placed in the windows and is visible from the outside of the Premises shall be treated as exterior signage subject to the provisions of paragraph 13 (d) above.
14. Laws and Regulations; Encumbrances . Tenant shall comply with, and Tenant shall cause its employees, contractors and agents to comply with, and shall use its best efforts to cause its visitors and invitees to comply with, (i) all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the use, condition or occupancy of the Premises (including without limitation the Board of Health), and (ii) all recorded instruments encumbering the Premises. Without limiting the foregoing, Tenant assumes all responsibility for compliance of the Premises with the requirements of the ADA. Subject to the provisions of paragraph 13 , Tenant shall complete any and all alterations, modifications or improvements to the Premises necessary in order to comply with all laws, ordinances, orders, rules and regulations during the term of this Lease whether such improvements or modifications are the legal responsibility of Landlord, Tenant or a third party. Tenant agrees to indemnify, defend and hold harmless Landlord from and against any and all claims, liabilities, fines, penalties, losses and expenses (including reasonable attorneys fees) arising in connection with Tenants failure to comply with the provisions of this paragraph.
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15. Hazardous Substances . Tenant shall comply, at its sole expense, with all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the protection of public health, safety, welfare or the environment (collectively, Environmental Laws ) in the use, occupancy and operation of the Premises, but Tenant shall not be responsible for any violation of Environmental Laws by Landlord in the use, occupancy or operation of the Premises by Landlord prior to the date of this Lease. Tenant agrees that no Hazardous Substances shall be used, located, stored or processed on the Premises, and no Hazardous Substances will be released or discharged from the Premises. The term Hazardous Substances shall mean and include all hazardous and toxic substances, waste or materials, any pollutant or contaminant, including, without limitation, PCBs, asbestos and raw materials that include hazardous constituents or any other similar substances or materials that are now or hereafter included under or regulated by any Environmental Laws or that would pose a health, safety or environmental hazard. Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against any and all losses, liabilities (including, but not limited to, strict liability), damages, injuries, expenses (including, but not limited to, court costs, litigation expenses, reasonable attorneys fees and costs of settlement or judgment), suits and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person, entity or governmental agency for, with respect to, or as a direct or indirect result of, the presence in or the escape, leakage, spillage, discharge, emission or release from the Premises of any Hazardous Substances or the presence of any Hazardous Substances placed on or discharged from the Premises by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees.
16. Insurance; Casualty; Waiver of Claims .
(a) Landlord shall keep the Project insured against loss or damage by fire or other casualty, with full extended coverage, in an amount representing the full insurable value of the Project; provided, however, Tenant shall reimburse to Landlord a portion of the cost of such insurance as set forth in paragraph 10(a) hereof. Tenant shall also reimburse to Landlord the entire cost of any special or additional premiums due to the Tenants use of the Premises.
(b) In the event the Building shall be damaged or destroyed by fire or other casualty during the term hereof, Landlord will cause the same to be repaired or rebuilt and restored to the condition immediately prior to such fire or other casualty. Notwithstanding the foregoing, if Landlord determines that the damage to the Building or to other portions of the Project is such that necessary repairs will take more than ninety (90) days to complete or if such damage is not covered by insurance, Landlord may, by written notice to Tenant, terminate this Lease. Further, and notwithstanding anything to the contrary contained in this paragraph, if the cost of any required repairs exceeds the actual proceeds of insurance due Landlord on account of such fire or other casualty, or if any mortgagee shall require that any insurance proceeds be paid to it, Landlord may terminate this Lease by written notice to Tenant.
(c) In the event the Premises are rendered untenantable as a result of any fire or other casualty, there shall be an equitable abatement in rental, but Tenant shall have no right to terminate this Lease as a result of any such fire or other casualty.
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(d) Landlord and Tenant hereby waive all rights of recovery and causes of action that either has or may have or that may arise hereafter against the other, whether caused by negligence, intentional misconduct, or otherwise, for any damage to premises, property or business caused by any perils covered by fire and extended coverage, building, contents, and business interruption insurance, or for which either party may be reimbursed as a result of insurance coverage affecting any loss suffered by it; provided , however , that the foregoing waivers shall apply only to the extent of any recovery made by the parties hereto under any policy of insurance now or hereafter issued; and further provided that the foregoing waivers shall be ineffective if they invalidate any policy of insurance of the parties hereto, now or hereafter issued. Landlord and Tenant will use their best efforts to have their respective insurance companies waive their rights of subrogation as contemplated herein.
17. Eminent Domain .
(a) If all of the Premises are taken by right of eminent domain or by purchase in lieu thereof or if a part of the Premises are taken by right of eminent domain or by purchase in lieu thereof and the taking would prevent or materially interfere with the use of the Premises for the purpose for which the Premises are then being used, this Lease will terminate and the rent will be abated during the unexpired portion of this Lease effective on the date physical possession is taken by the condemning authority. In the event of termination of this Lease, Tenant shall have the right to remove all of Tenants property and contents located thereon. The entire award for any such taking shall belong to Landlord; provided however, that Tenant shall be free to prosecute a separate claim against the condemning authority for loss of personal property, moving expenses and/or business losses. In no event, however, shall Tenant have any interest in any award made to Landlord in connection with the taking of Landlords interest in the Premises.
(b) If this Lease shall not be terminated as in this paragraph provided, then this Lease shall terminate as to the property so taken, but shall continue as to that portion of the Premises which shall not have been appropriated or taken. In that event, Landlord, at its cost and expense, shall cause the remaining portion of the Building to be repaired or rebuilt and restored to a complete unit of like quality and character as existed prior to such appropriation or taking. Notwithstanding the foregoing, if Landlord determines that the taking of the Building or other portions of the Project is such that necessary repairs will take more than ninety (90) days to complete, Landlord may, by written notice to Tenant, terminate this Lease. Further, and notwithstanding anything to the contrary contained in this paragraph, if the cost of any required repairs exceeds the actual condemnation settlement or award due Landlord on account of such taking, or if any mortgagee shall require that any condemnation settlement or award be paid to it, Landlord may terminate this Lease by written notice to Tenant.
(c) If this Lease is not terminated as in this paragraph provided, there shall be an abatement in rental in proportion to the reduction in the floor area of the Premises as a result of any condemnation, but only if such abated rent is specifically set aside by the condemning authority as part of the condemnation settlement or award received by Landlord.
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18. Tenants Insurance .
(a) Tenant shall, at Tenants expense, procure public liability insurance, issued by a company or companies holding a General Policy Rating of A-, X or better, as set forth in the most current issue of Best Key Rating Guide, and acceptable to Landlord, giving comprehensive coverage of the Premises for all such hazards as are normally insurable and for which the Landlord might be held liable, such insurance to be in the amount of at least Two Million and No/100 Dollars ($2,000,000), such policy or policies to name Landlord and its lender as additional insured, and to be written so as to indemnify and protect Landlord, any lender and Tenant as their respective interests may appear, and to provide that they may not be canceled or modified except upon not less than thirty (30) days prior written notice to Landlord and Tenant. Tenant will furnish Landlord, at all times, a certificate evidencing such coverage in form and substance satisfactory to Landlord, together with an exact copy of all policies purchased in compliance with this paragraph.
(b) All property of any kind that may at any time be used, left or placed on the Premises during the term of this Lease shall be at the sole risk of Tenant and its employees, customers, agents and invitees. Tenant shall maintain all risk casualty coverage, vandalism and malicious mischief and sprinkler leakage insurance, for the full cost of replacement of Tenants property, including its fixtures, equipment and tenant improvements.
19. Hold Harmless . Landlord shall not be liable to Tenant, its agents, servants, employees, contractors, customers or invitees, for any damage to person or property unless caused by the gross negligence or intentional misconduct of Landlord. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Tenant agrees to indemnify, defend by counsel reasonably acceptable to Landlord and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises, arising from Tenants occupancy of the Premises, or the conduct of its business or from any activity, work or thing done, permitted or suffered by Tenant in or about the Premises, or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or due to any other act or omission or willful misconduct of Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees except for any claim arising solely out of the gross negligence or willful misconduct of Landlord.
20. Default and Remedies .
(a) The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an Event of Default ):
(i) | Failure by Tenant to pay any rental or additional rental (including without limitation Tenants Prorata Share Percentage of CAM Expenses) within five (5) days after the same is due; |
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(ii) | Any failure by Tenant to obtain insurance as required herein; |
(iii) | Abandonment of the Premises; |
(iv) | Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting; |
(v) | Failure by Tenant to cure forthwith, after receiving thirty (30) days written receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted to exist in violation of law or of this Lease. |
(vi) | Failure by Tenant to observe or perform any other covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; |
(vii) | The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which lien shall not be released or discharged within thirty (30) days from the date of such filing; |
(viii) | Tenant becomes insolvent or bankrupt or admits in writing an inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; |
(ix) | A trustee or receiver is appointed for Tenant, for Tenants interest in the Premises or for a major part of the property of Tenant and is not discharged within sixty (60) days after such appointment; or |
(x) | Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant, or (B) against Tenant and is allowed against Tenant or is consented to by Tenant or is not dismissed within sixty (60) days after such institution. |
(b) Upon the occurrence of an Event of Default, Landlord shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
(i) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenants part to keep, observe, perform, satisfy or abide by any term, condition, covenant, agreement or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord on demand. |
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(ii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove there from all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re-enter and take possession of the Premises. |
(iii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove there from Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. |
(iv) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all costs of such reletting including but not limited to the cost of any such alterations and repairs to the Premises, attorneys fees, leasing inducements and brokerage commissions; and if this Lease shall not have been terminated, Tenant shall continue to pay all rent and all other charges due under this Lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. |
(v) |
Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, all arrearages in rentals, costs, charges and reimbursements, the cost (including court costs and attorneys fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be |
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paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, both figures being discounted to present value using a discount rate equal to the yield of direct obligations of the United States of America having a maturity closest to the expiration of the then current term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subparagraph (iv) if the Lease were not terminated, payable in the manner contemplated in subparagraph (iv). Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. |
(vi) | The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. All remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively or in any other manner and are in addition to any other rights provided for or allowed by law or in equity. |
(vii) | No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant. |
21. Attorneys Fees . In the event of any default by either Landlord or Tenant, the prevailing party in any dispute shall be entitled to recover from the non-prevailing party reasonable attorneys fees, expenses and costs of court.
22. No Waiver of Rights . No failure or delay of Landlord to exercise any right or power given it herein or to insist upon strict compliance by Tenant of any obligation imposed on it herein and no custom or practice of either party hereto at variance with any term hereof shall constitute a waiver or a modification of the terms hereof by Landlord or any right it has herein to demand strict compliance with the terms hereof by Tenant. No waiver of any right of Landlord or any default by Tenant on one occasion shall operate as a waiver of any of Landlords other rights or of any subsequent default by Tenant. No express waiver shall affect any condition, covenant, rule or regulation other than the one specified in such waiver and then only for the time and in the manner specified in such waiver. No person has or shall have any authority to waive any provision of this Lease for Landlord unless such waiver is expressly made in writing and signed by a general partner of Landlord.
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23. Holding Over . In the event of holding over by Tenant after expiration or termination of this Lease without the written consent of Landlord, Tenant shall pay as rent for such holdover period one hundred fifty percent (150%) of the rental that would have been payable if this Lease had not so terminated or expired. In the event of holding over by Tenant after expiration or termination of this Lease with the written consent of Landlord, Tenant shall pay as rent for such holdover period one hundred twenty-five percent (125%) of the rental that would have been payable if this Lease had not so terminated or expired. No holding over by Tenant after the term of this Lease shall be construed to extend this Lease, and Tenant shall be deemed a tenant at will, terminable on five (5) days notice from Landlord. In the event of any unauthorized holding over, Tenant shall indemnify Landlord against all claims for damages by any other tenant to whom Landlord shall have leased all or any part of the Premises effective upon the termination of this Lease.
24. Rent Net . It is the intention of this Lease, and of the parties hereto, that, except as otherwise expressly provided herein, Tenant shall pay all costs and expenses incident to the occupancy of the Premises throughout the term hereof, whether such costs and expenses be specifically described in this Lease or not, the rent reserved to Landlord being intended to be net to Landlord and not subject to any charge or expenses, except as otherwise expressly provided herein.
25. Subordination . This Lease and all of Tenants rights hereunder are automatically (without the need for further documentation) to the lien of any mortgage or mortgages, or the lien resulting from any other method of financing or refinancing (including any deed of trust), now or hereafter in force against the Premises and to all advances made or hereafter to be made upon the security thereof. Upon Landlords request, Tenant shall execute a written subordination agreement on the form required by Landlords lender, confirming such subordination. Tenant hereby agrees to attorn to any person, firm or corporation purchasing or otherwise acquiring the Project or the Premises at any sale or other proceeding or pursuant to the exercise of any other rights, power or remedies under such mortgages or deeds of trust, as if such person, firm, or corporation had been named as Landlord herein. Notwithstanding the foregoing, in no event shall Landlord have, or be entitled to grant to a third party, a lien or security interest in any of Tenants furniture, trade fixtures, equipment or other personal property.
26. Sublease or Assignment by Tenant .
(a) Tenant shall not, without Landlords prior written consent, which consent shall not be unreasonably withheld, (i) assign, convey, mortgage, pledge, encumber or otherwise transfer (whether voluntarily, by operation of law or otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenants interest hereunder; (iii) sublet the Premises or any part thereof; or (iv) permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant. Any attempt to consummate any of the foregoing without Landlords consent shall be void and of no force or effect.
(b) Notwithstanding the giving by Landlord of its consent to any subletting, assignment or occupancy as provided hereunder or any language contained in such lease, sublease or assignment to the contrary, unless this Lease is expressly terminated by Landlord or
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Landlord expressly agrees to the contrary in writing, Tenant shall not be relieved of any of Tenants obligations or covenants under this Lease and Tenant shall remain fully liable hereunder.
27. Quiet Enjoyment . Landlord covenants that Tenant shall and may peacefully have, hold and enjoy the Premises free from hindrance by Landlord or any person claiming by, through or under Landlord but subject to the other terms hereof, provided that Tenant pays the rental and other sums herein recited to be paid by Tenant and performs all of Tenants covenants and agreements herein contained. It is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and its successors only with respect to breaches occurring during the ownership of Landlords interest hereunder.
28. Assignment by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder and in the Premises, and in such event and upon such transfer which shall include transfer of any security deposits owed to Tenant, no further liability or obligation shall thereafter accrue against Landlord hereunder.
29. Limitation of Landlords Personal Liability . Tenant specifically agrees to look solely to Landlords equity interest in the Project for the recovery of any monetary judgment against Landlord, it being agreed that Landlord (and its partners) shall never be personally liable for any such judgment.
30. Notices . Any notice or other communications required or permitted to be given under this Lease must be in writing and either (i) deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested addressed to Landlord or Tenant, as applicable, as stated below, or (ii) delivered by a recognized overnight courier service for which proof of delivery is available to the address for Landlord or Tenant, as applicable, stated below. Either party shall have the right to change its address to which notices shall thereafter be sent and the party to whose attention such notice shall be directed by giving the other party notice thereof in accordance with the provisions of this paragraph.
Landlord :
First Farmers and Merchants Bank
P.O. Box 1148
Columbia, TN
Attn: Sam Wantland
Tenant :
Franklin Synergy Bank
722 Columbia Ave.
Franklin, TN 37064
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31. Rules and Regulations . Landlord reserves the right to establish, and to modify from time to time, such rules and regulations as Landlord may deem necessary to govern the use of the common areas. Tenant agrees to abide by such rules and regulations. Landlord shall have no liability for failure to enforce such rules and regulations against other tenants. Landlord reserves the right to reconfigure, alter, modify or change the common areas from time to time.
32. Inspection . Tenant hereby agrees to permit the Landlord or its agents to enter the Premises during the last six (6) months of the term for the purposes of exhibiting same to prospective tenants. Further, Landlord shall have free access to the Premises at any time during the term of this Lease to inspect or examine same at any reasonable time and to make such repairs thereto as (a) Landlord is obligated to make hereunder, (b) Tenant is obligated to make hereunder, but have not been made, or (c) Landlord may deem desirable or necessary for the safety or preservation for the Premises or the Projector.
33. Sanitation, Traffic and Safety . Tenant agrees to comply with such reasonable rules and regulations as Landlord shall from time to time impose, including reasonable requirements with regard to sanitation, handling of trash and debris, loading and unloading of trucks and other vehicles, safety and security against fire and theft, vandalism, personal injury and other hazards, and for eliminating unsightly and/or unsanitary accumulation of trash or other similar misuses of highways, landscaping and loading areas, and to preclude unsightly window advertising.
34. Miscellaneous .
(a) This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord, and shall be binding upon and inure to the benefit of Tenant, its successors, and, to the extent assignment may be approved by Landlord hereunder, Tenants assigns.
(b) All rights and remedies of Landlord and Tenant under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Lease is declared to be a Tennessee contract, and all of the terms hereof shall be construed according to the laws of the State of Tennessee.
(c) This Lease may not be altered, changed or amended, except by an instrument in writing executed by Landlord and Tenant.
(d) TO THE EXTENT PERMITTED BY APPLICABLE LAW, LANDLORD AND TENANT SHALL AND THEY HEREBY DO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY LANDLORD OR TENANT AGAINST THE OTHER ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANTS USE OR OCCUPANCY OF THE PREMISES AND/OR ANY CLAIM OF INJURY OR DAMAGE. IN THE EVENT LANDLORD COMMENCES ANY PROCEEDINGS FOR NONPAYMENT OF RENT OR ANY OTHER AMOUNTS PAYABLE HEREUNDER, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF
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WHATEVER NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING, UNLESS THE FAILURE TO RAISE THE SAME WOULD CONSTITUTE A WAIVER THEREOF. THIS SHALL NOT, HOWEVER, BE CONSTRUED AS A WAIVER OF TENANTS RIGHT TO ASSERT SUCH CLAIMS IN ANY SEPARATE ACTION BROUGHT BY TENANT.
(e) If any term or provision of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and shall be enforceable to the extent permitted by law.
(f) Time is of the essence in this Lease.
(g) Brokers. Landlord and Tenant warrant and represent there were no brokers involved in this transaction other than Kroeger Real Estate Company and Loch Company. (the Brokers). The Brokers commission is subject to a separate agreement between the parties. The parties shall indemnify, defend and hold each other harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, without limitation, court costs, reasonable attorneys fees and litigation expenses) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such other broker or brokers or finders claiming to have dealt with either party in connection with this Lease or with whom a party hereafter deals or whom a party hereafter employs.
(h) Landlords receipt of any rental payable by Tenant hereunder with knowledge of the breach of a covenant or agreement contained in this Lease shall not be deemed a waiver of the breach. No acceptance by Landlord of a lesser amount than the installment of rental which is due shall be considered, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed, an accord and satisfaction. Landlord may accept a check or payment without prejudice to Landlords right to recover the balance due or to pursue any other remedy provided in this Lease.
(i) Any claim, cause of action, liability or obligation arising under the terms of this Lease and under the provisions hereof in favor of a party hereto against or obligating the other party hereto and all of Tenants indemnification obligations hereunder shall survive the expiration or any earlier termination of this Lease.
(j) Each of Landlord and Tenant shall, upon reasonable request by one to the other, issue to such person or entity specified by such requesting party, an estoppel certificate specifying: (a) the nature of any known default under this Lease of such requesting party or of the party to whom the request has been directed, (b) whether this Lease has been amended or modified in any way (and if so, stating the nature of such amendment or notification), (c) that to the knowledge of the party giving the certificate, this Lease, as of the date of such certificate, is in full force and effect, (d) whether there are any rights of set-off by the party giving the certificate against the other party and (e) such other matters reasonably requested by such requesting party.
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(k) Entire Agreement . The entire understanding between the parties is set out in this Lease, this Lease supersedes and voids all prior proposals, letters and agreements, oral or written, and no modification or alteration of this Lease shall be effective unless evidenced by an instrument in writing signed by both parties.
IN WITNESS WHEREOF, the parties hereto have executed and sealed this Lease as of the date aforesaid.
LANDLORD : | ||
FIRST FARMERS and MERCHANTS BANK | ||
By: |
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Title: |
Special Assets Asst. Manager |
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TENANT : | ||
FRANKLIN SYNERGY BANK | ||
By: |
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Title: |
SVP COO |
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EXHIBIT A
[Real Property Description]
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EXHIBIT A-1
Premises
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Exhibit 10.4
Suites 201, 202 and 203
OFFICE LEASE AGREEMENT
Aspen Brook Village
3301 Aspen Grove Drive
Cool Springs, Tennessee
Franklin Financial Network, Inc. - Tenant
Bank Business Offices
PCC Investments II, LLC - Landlord
OFFICE LEASE AGREEMENT
THIS LEASH AGREEMENT (the Lease) made and entered into as of May 11, 2007, by and between PCC Investments II, LLC, a Tennessee Limited Liability Company (Landlord), and Franklin Financial Network, Inc., a Tennessee corporation (Tenant).
WITNESSETH:
1. Demise of Premises. Landlord hereby demises the Premises, Suites 201, 202 and 203 to Tenant and covenants that Tenant shall peaceably and quietly hold and enjoy the Premises throughout the initial term set forth in Section 1(a) hereof, and any extension thereof as permitted under Section 29 hereof (the Term), from all persons claiming through Landlord, on and subject to all the provisions and conditions of this Lease; and Tenant hereby accepts such demise of the Premises from Landlord.
The Premises consist of the space containing 6,477 rentable square feet of base premises (plus 815 square feet of outdoor balcony space) located in the building known as Aspen Brook Village (the Building) on a tract of land located at 3301 Aspen Grove Drive, Franklin, Tennessee, as shown on Exhibit A attached hereto. The Premises, Building and adjacent grounds located on such tract of land are hereinafter called the Property. Common Areas shall mean those areas of the Building and such adjacent grounds which are shared by all tenants of the Building. The Common Area Factor is 19%, or 1,234 SF.
2. Term .
(a) The initial term of this Lease shall begin on May 15, 2007 and on the seventh anniversary of the Rent Commencement Date (as defined in Section 3(a) hereof), and rent payments hereunder shall commence on such Rent Commencement Date. Tenant may begin the occupancy of the Premises upon the issuance of a certificate of occupancy by the appropriate local governmental authority and after substantial completion of the Tenant Improvements to be constructed by Tenant pursuant to the Work Letter attached hereto as Exhibit B .
(b) Promptly upon the commencement of the initial term of this Lease, the parties hereto shall execute a Commencement Date Certificate in form mutually acceptable to them setting forth, among other things, the commencement date of such term.
3. Rent . Throughout the term of this Lease, Tenant shall pay rent to Landlord in accordance with the following provisions:
(a) Tenant shall pay annual base rent (the Base Rent) in monthly installments in advance on or before the first day of each calendar month commencing the earlier of September 15, 2007 or the date of Substantial Completion, as defined in Exhibit B attached hereto (the Rent Commencement Date). If rent payments begin on a day other than the first day of a calendar month or the Term ends on a day other than the last day of a calendar month, then the monthly rent due hereunder for such calendar month will be appropriately prorated based on the actual number of calendar days in such calendar month and the rent for such month will be paid on or before the first day of the following calendar month. The monthly installments payable during the initial term of this Lease are set forth in Exhibit C hereto.
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(b) Additional Rent (herein so called) shall be calculated as provided in Exhibit D hereto, subject to Section 29 hereof. For each calendar year after the year in which the Commencement Date occurs, Landlord shall furnish Tenant a written estimate of Additional Rent for the applicable calendar year. Estimates of Additional Rent shall be made by Landlord on a reasonable basis determined by Landlord. For the calendar year 2007, Landlord estimates that the Additional Rent will be $4.00 a square foot for the base leased premises of 6,477 sq. ft. and $0.00 a square foot for balcony space of 815 sq. ft. Throughout the Term of this Lease, Tenant shall pay estimated Additional Rent in advance on or before the first day of each month in monthly installments equal to one-twelfth (1/12) of the estimated Additional Rent for the applicable calendar year. Pending receipt of Landlords written estimate of Additional Rent for any calendar year, monthly installments of estimated Additional Rent shall continue to be paid in the same amount as in the prior calendar year. By April 30 of each calendar year, Landlord shall deliver to Tenant a written statement reflecting any difference between estimated Additional Rent paid and actual Additional Rent accrued for the prior calendar year (or, in the case of any partial calendar year in which the Term begins or ends, a prorated portion of such Additional Rent based upon actual days elapsed during that portion of the Term occurring in that calendar year). Tenant shall pay Landlord the total amount of any balance of Additional Rent due shown on such annual statement within thirty (30) days after receipt of the statement; provided, however, the total amount of actual Additional Rent due and payable by Tenant for each calendar year shall not exceed 104% of the total actual Additional Rent due and payable for the then previous calendar year (or, if either such calendar year or the then prior calendar year is a partial calendar year, the average daily actual Additional Rent due and payable for such calendar year shall not exceed 104% of the average daily actual Additional Rent due and payable for such previous calendar year). Landlord shall refund any overpayment of Additional Rent by Tenant shown on such annual statement within thirty (30) days after delivery of the statement. Tenant may examine the accounting records supporting the amount of Additional Rent reflected on such annual statement within a sixty (60) day period after receipt of the statement, such examination to occur after reasonable advance written notice to Landlord during normal business hours at the place where Landlords accounting records are normally kept.
(c) The installments of Base Rent and Additional Rent for any initial partial calendar month shall be prorated based on actual days elapsed and shall be paid in advance on the Commencement Date.
(d) Except as expressly provided to the contrary in this Lease, Installments of Base Rent and Additional Rent shall be payable without notice, demand, reduction, setoff, or other defense. Installments of Base Rent and Additional Rent and payment of other sums owing to Landlord pursuant to this Lease shall be made to Landlord at the address specified on the signature page, or at whatever other account or address that Landlord may designate from time to time by written notice to Tenant.
(e) If any installment of Base Rent or Additional Rent, or any other sum due and payable pursuant to this Lease, remains unpaid for more than fifteen (15) days after the date due, Tenant shall pay Landlord a late payment charge equal to the greater of (i) Fifty and no/100
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Dollars ($50.00), or (ii) five percent (5%) of the unpaid installment or other payment. The late payment charge is intended to compensate Landlord for administrative expenses associated with responding to late payment, and shall not be considered liquidated damages or interest.
(f) If any check tendered by or on behalf of Tenant in Payment of any sum due under this Lease is dishonored and returned to Landlord for any reason whatsoever, Tenant shall be charged the sum of Forty Dollars ($40.00) for each such check, which amount shall be payable as Rent, to defray the expense of handling, processing and bookkeeping. Any such check shall be promptly replaced by Tenant with a check that is the direct obligation of a bank or savings and loan institution (certified check, or other check representing immediately available funds). The amount of such replacement check shall be in the aggregate amount of the payment tendered, plus the Forty Dollars ($40.00) check charge, and any applicable sales and other tax. If not paid by Tenant within ten (10) days after notification to tenant of the dishonored check, said Forty Dollars ($40.00) charge shall also be subject to said late charges. In the event two (2) or more checks tendered by or on behalf of Tenant are dishonored and returned to Landlord for any reason whatsoever during any twelve (12) month period, all future payments by Tenant to Landlord shall me made with checks that are the direct obligation of a bank or savings and loan institution (certified check or other check representing immediately available funds).
(g) Landlord shall not be bound by any notation on any check or letter, such as paid in Full.
4. Use of Premises; Compliance with Legal Requirements . Tenant shall use the Premises only for a bank business offices and for no other purposes. Tenant shall not commit or allow waste to be committed in the Premises or elsewhere on the Property, and shall not do or allow to be done in the Premises or elsewhere on the Property anything that shall constitute a nuisance or detract in any way from the reputation of the Property as a first-class real estate development. Tenant shall allow no noxious or offensive odors, fumes, gases, smoke, dust, steam or vapors, or any loud or disturbing noise or vibrations to originate in or be emitted from the Premises. Tenant shall comply with all laws, ordinances, and regulations of any governmental authority relating to Tenants use or occupancy of the Premises, with the requirements of insurance underwriters or rating bureaus applicable to the Property, and with the following requirements:
(a) No portion of the Premises or the Property shall be used or occupied for anything that is extra hazardous on account of fire or other risks, that causes an increase in the premiums payable by Landlord for any of its insurance with respect to the Property, or that causes any underwriter to deny insurance coverage to Landlord.
(b) Tenant shall comply with all requirements of the Americans with Disabilities Act and implementing regulations with respect to improvements made by Tenant within the Premises, and its use and occupancy of the Premises.
(c) Tenant may use generally available office equipment and supplies of a type which are customary for the purpose for which Tenant shall occupy the Premises that contain small quantities or low concentrations of Hazardous Materials so long as they are properly used and stored within the Premises, properly disposed of by Tenant at a location other than the Property, and do not require any governmental license or permit. Except as permitted in the preceding
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sentence, no use, generation, storage, treatment, transportation, or disposal of any Hazardous Material shall occur or be permitted to occur in connection with Tenants use and occupancy of the Premises or any other portion of the Property. Hazardous Material shall mean any toxic or hazardous waste, material, or substance or any other substance that is prohibited, limited, or regulated as a health or environmental hazard by any governmental or quasi-governmental authority, or that even if not so regulated, could or does pose a hazard to the environment or to health and safety of the occupants of the Building or others.
(d) Landlord shall have the right to prescribe and modify reasonable rules for use of the Property and leased premises within the Building. A copy of Landlords current Building rules is attached hereto as Exhibit E . In the event of any conflict with the Building rules, the provisions in the main body of this Lease control.
(e) Tenant shall ensure that its agents, employees, and contractors comply with this Paragraph, and shall use reasonable efforts to ensure that its invitees and customers comply with this Paragraph.
(f) Tenant and Landlord shall execute and deliver, on and as of the date hereof, the Lease Authorization, in the form set forth on Exhibit F thereto.
5. Taxes Payable by Tenant . Tenant shall pay any documentary stamp tax, sales or use tax, excise tax, or any other tax, assessment, or charge (other than any income, franchise, or similar tax imposed directly on Landlord or Landlords net income from the Property) required to be paid on account of (a) the use or occupancy of the Premises by Tenant, (b) the rent or other payments due hereunder, or (c) Tenants trade fixtures, equipment, machinery, inventory, merchandise or other personal property located on the Premises and owned by or in the custody of Tenant. All such taxes, assessments, and charges shall be paid promptly as they become due prior to delinquency. If requested by Landlord, Tenant shall provide Landlord with copies of paid receipts for such taxes, assessments, or charges promptly after payment of same. Tenant shall also pay on written demand from Landlord any increase in ad valorem taxes or assessments on the Property as a result of alterations, additions, or improvements made by or on behalf of Tenant other than the initial Tenant Improvements.
6. Insurance Coverage; Waiver of Subrogation .
(a) Landlord shall maintain property and casualty insurance on the Building, with extended coverage or such other additional coverage as Landlord shall elect, in an amount of not less than eighty percent (80%) of the replacement cost of the Building; provided, however, if the premium for any insurance carried by Landlord with respect to the Property increases as the result of Tenants use or occupancy or as the result of any act or omission of Tenant or its agents, employees, or contractors, Tenant shall pay Landlord the amount of any such increase on written demand. Payment of such increased premiums shall not excuse any noncompliance with this Lease by Tenant that may have caused the increased premiums.
(b) Tenant shall maintain and pay for property and casualty insurance with extended coverage on all trade fixtures, equipment, machinery, merchandise, or otherwise on the Property. Tenant shall maintain and pay for commercial general liability insurance (occurrence coverage)
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in the amount of not less than $1,000,000.00, with a company licensed to do business in the state in which the Property is located and reasonable acceptable to Landlord, naming Landlord as an additional insured, to the extent of liability assumed under Indemnification clause Article 22 of this lease, providing contractual liability coverage, and containing an undertaking by the insurer not to cancel or change coverage materially without first giving thirty (30) days written notice to Landlord. Tenant shall furnish Landlord certificates of insurance evidencing the required commercial general liability insurance coverage prior to the Commencement Date and thereafter prior to each policy renewal date.
(c) Each of Landlord and Tenant hereby waives all claims or other rights of recovery against the other and its agents, employees, and contractors for any loss or damage to the Premises or other portions of the Property, or to any personal property or fixtures thereon, by reason of fire or other insurable risk of loss (whether or not actually insured), regardless of cause or origin, including negligence, gross negligence, or misconduct of the other party or its agents, employees, or contractors, and covenants that no insurer shall hold any right of subrogation against such other party. Landlord and Tenant shall each advise its insurers of the foregoing waiver and such waiver shall be a part of the respective policies of property and casualty insurance maintained by Landlord and Tenant.
7. Services Furnished by Landlord . So long as Tenant is entitled to possession of the Premises during the Term, Landlord shall furnish the following services, which shall be reasonably consistent in quality with similar landlord services at comparable office buildings in the same market area as the Building:
(a) Heating and air conditioning in season to provided reasonably comfortable temperatures in the Common Areas (unless mandated otherwise by law) Monday through Friday from 7:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m. to 2:00 p.m., exclusive of holidays observed by national banks in the city in which the Property is located.
(b) Reasonable janitorial and general cleaning services for the Common Area from Monday through Friday, exclusive of holidays observed by national banks in the city in which the Property is located.
(c) Electricity for routine lighting and the operation of the Common Areas.
(d) Passenger elevator service to all floors of the Building. Tenants move (and any significant moving) shall occur outside normal business hours.
(e) Reasonable amounts of cold running water to tenant spaces in or appurtenant to the Premises.
(f) Routine maintenance and repair of the structure of the Building and general Building mechanical, electrical, and plumbing systems and exterior lighting, landscaping, and irrigation, and parking, driveways, and sidewalks of the Property. Tenant is responsible for all interior maintenance and repair of the Premises, including, without limitation, all interior items, plumbing, HVAC, windows and door located on the Premises. If the Premises or any other part of the Property is damaged by any act or omission of Tenant or its agents, employees, or contractors, then Landlord may repair such damage. Any cost of such repairs to the Premises in
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excess of insurance proceeds actually received by Landlord shall be paid by Tenant to Landlord on written demand, and Landlord shall not be obligated to begin or continue repair work until funds for such purposes are received from insurance proceeds or from Tenant.
(g) If and to the extent Landlord chooses, security services and equipment for the Common Areas. Landlord has no duty to provide security, and no duty to so shall be deemed to have been assumed by Landlords furnishing and security services or equipment. Tenant waives and releases all claims against Landlord and its agents, employees, and contractors to the extent based on any wrongful, negligent, or other failure to furnish security services or equipment or on any wrongful, negligent, or other act or omission in connection with any security services or equipment furnished.
(h) Keys to the Premises, however, Tenant will be charged for additional keys provided throughout the Lease Term.
Tenant shall not be deemed to have been evicted as the result of, nor shall Landlord be liable for any loss or damage to the property of Tenant located in the Premises or for any loss of business or profits of Tenant or other damages of any kind arising from (i) any failure of Landlord to provide any of the services to be furnished by Landlord pursuant to this Paragraph as the result of circumstances outside of Landlords reasonable control, (ii) any interruption or unavailability of utilities or any stoppage, leaking, bursting, or other defect or failure in the utility lines, pipes, wires, and other facilities serving the Premises as the result of circumstances outside of Landlords reasonable control, or (iii) any repairs, maintenance, alterations, or improvements to any portion of the Property made in connection with correcting any of the foregoing circumstances or providing the services to be furnished by Landlord pursuant to this Paragraph. If as the result of any of the foregoing, the Premises, or any portion thereof, remain untenantable for more than ten (10) days after written notice from Tenant to Landlord specifying the circumstances giving rise to such untenantability, then as Tenants sole and exclusive remedy Minimum Rent and Additional Rent shall abate for so long thereafter as the Premises, or any portion thereof, remain untenantable. Such abatement of Base Rent and Additional Rent shall not extend the Term of this lease.
8. Alterations and Improvements . Tenant shall make no alterations, additions, or improvements to the Premises or the Property without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Tenant shall comply with all reasonable requirements of Landlord relating to approval of plans and specifications, compliance with building codes and other laws, protection of the integrity, condition, and proper functioning of the roof, walls, foundations, and other structural elements of the Building and of the Buildings mechanical, electrical, and plumbing systems and equipment, employment and bonding of contractors, insurance, aesthetic considerations, and other relevant matters as determined by Landlord. All alterations, additions or improvements, including without limitation all partitions, walls, railings, carpeting, floor and wall coverings, and other fixtures (excluding Tenants trade fixtures) made by, for, or at the direction of Tenant shall become the property of Landlord when made, and shall remain upon the Premises at the expiration or earlier termination of this Lease. Landlord reserves the right to make structural and nonstructural alterations, additions, and improvements to the Property, to re-stripe parking areas and otherwise control parking and traffic movement on Property, and to change the name or street address (if required by local authorities) of the Property.
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9. Trade Fixtures and Other Personal Property . Any trade fixtures installed in the Premises at Tenants expense shall remain Tenants personal property, and Tenant shall have the right at any time during the Term of this Lease to remove such trade fixtures (provided that any damage to the Building or Premises caused by such removal shall be repaired by Tenant within a commercially reasonable amount of time). On or before the expiration of the Term or earlier termination of this Lease, Tenant shall remove all trade fixtures and other personal property of Tenant from the Premises, repair any damage to the Building or Premises caused by removal of its trade fixtures and other personal property, and leave the Premises in a clean condition free of waste, refuse, or debris, reasonable wear and tear and damage by casualty expected. If Tenant fails to do so, Landlord may retain, store, or dispose of such trade fixtures and other personal property however Landlord chooses without liability of any kind to Tenant, repair any damage to the Building or Premises caused by removal of such trade fixtures and other personal property, and clean the Premises and properly dispose of all such waste, refuse, or debris; and all costs and expenses incurred by landlord in connection with the foregoing shall be payable by Tenant to Landlord on written demand. The following property shall be considered part of the permanent improvements to the Building owned by Landlord, not trade fixtures of Tenant, and shall not be removed from the Premises by Tenant under any circumstances: (a) HVAC systems, fixtures, or equipment; (b) lighting fixtures or equipment; (c) carpeting, other permanent floor coverings, or raised flooring; (d) paneling or other wall covers; (e) plumbing fixture and equipment; and (f) permanent shelving and built-in cabinetry.
10. Signs and Advertising . Landlord will provide a Building Directory for the first floor, and Tenant will be responsible for proper name identification on the directory. Landlord will provide all interior tenant name identification and code required signs in the Common Areas. Tenant is responsible for cost to install and maintain building signs (if allowed by Codes). Signs must also be installed to building specifications, and the location of these signs must be approved by Landlord, which approval Landlord shall not unreasonably withhold or delay. In this regard, Landlord agrees that (a) Tenant may erect a sign on the north face of the center tower of the Building and (b) such sign shall be, at Tenants election, as large of a sign as permitted by the applicable building codes authority and as reasonably allowed by Landlord.
11. Landlords Right of Entry . Landlord and persons authorized by Landlord may enter the Premises at any time without notice to Tenant in the event of emergency involving possible injury to property or persons in or around the Premises of the Building. Landlord and persons authorized by Landlord shall also have the right to enter the Premises at all reasonable times and upon reasonable notice for the purposes of making repairs or connections, making alterations, additions, or improvements to the Building, installing utilities, providing services to the Premises other than routine janitorial service, providing services for other tenants, making inspections, or showing the Premises to prospective purchasers or lenders of the Property. During the last six (6) months of the Term, Landlord and persons authorized by Landlord shall have the right at reasonable times and upon reasonable notice to show the Premises to prospective tenants.
12. Casualty Damage . Tenant shall give prompt notice to Landlord of any damage by fire or other casualty of or on the Premises. If such damage or casualty renders any substantial part of
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the Premises untenantable and the repair time to restore the Premises to a tenantable condition will exceed one hundred twenty (120) days (or will exceed thirty (30) days in the case of damage occurring during the last twelve (12) months of the Term), or if any mortgagee of the Property requires application of the insurance proceeds to the reduction of the mortgage debt upon the occurrence of any such casualty, or if any material uninsured loss occurs, Landlord may, at its option, terminate this Lease by so notifying Tenant in writing within sixty (60) days after the date of the casualty or loss. If the damage by fire or other casualty renders any substantial part of the Premises untenantable and if the repair time to restore the Premises to a tenantable condition will exceed sixty (60) days (or will exceed thirty (30) days in the case of damage occurring during the last twelve (12) months of the Term), Tenant may elect to terminate this Lease by so notifying Landlord in writing within thirty (30) days after the date of the casualty. If the Lease is not so terminated by Landlord or Tenant, Landlord shall promptly begin and diligently pursue the work of restoring the Premises (including the initial Tenant Improvements) to substantially their former condition as soon as reasonably possible. Landlord shall not, however, be required to restore any alterations, additions, or improvements other than the initial Tenant Improvements. Landlord shall allow Tenant an equitable abatement of Base Rent and Additional Rent during the time and to the extent the Premises are untenantable as the result of fire or other casualty, but such abatement shall not extend the Term.
13. Condemnation . If all or substantially all of the Property is condemned or is sold in lieu of condemnation to the condemning authority, then this Lease shall terminate on the date the condemning authority takes possession. If less than all of the Property is so condemned or sold (whether or not the Premises are affected) and in Landlords judgment, the Property cannot be restored to an economically viable condition, or if any mortgage of the Property requires application of condemnation proceeds to the reduction of the mortgage debt, Landlord may terminate this Lease by written notice to Tenant effective on the date the condemning authority takes possession. If the condemnation will render any substantial part of the Premises untenantable, Tenant may terminate this Lease by written notice to Landlord effective on the date the condemning authority takes possession of the affected part of the Premises. If this Lease is not so terminated by Landlord or Tenant, Landlord shall, to the extent feasible, restore the Premises (including the Tenant Improvements) to substantially their former condition. Landlord shall not, however, be required to restore any alterations, additions, or improvements other than the initial Tenant Improvements. Landlord shall allow Tenant an equitable abatement of Base Rent and Additional Rent during the time and to the extent the Premises are untenantable as the result of any condemnation, but such abatement shall not extend the Term. All condemnation awards and proceeds shall belong exclusively to Landlord, and Tenant shall not be entitled to, and expressly waives and assigns to Landlord, all claims for any compensation for condemnation; provided, however, if Tenant is permitted by applicable law to maintain a separate action that will not reduce condemnation awards or proceeds to Landlord, Tenant shall be permitted to pursue such separate action for an award to which Tenant may be entitled, including but not limited to loss of business, moving expenses, Tenants trade fixtures, and improvements or alterations to the Premises for which Tenant paid.
14. Transfers by Tenant .
(a) Without the prior written consent of Landlord in each instance, which consent will not be unreasonable withheld, Tenant shall not do any of the following (as used in this
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Paragraph, a Transfer): (i) assign this Lease or any estate or interest therein, whether absolutely or collaterally as security for any obligation; (ii) sublease any part of the Premises; (iii) permit any assignment of this Lease or any estate or interest therein by operation of law; (iv) grant any license, concession, or other right of occupancy for any part of the Premises; or (v) permit the use of the Premises by any person other than Tenant and its agents and employees; provided, however, Tenant may assign this Lease, or sublet all or a portion of the Premises, to Franklin Synergy Bank, which is or shall be a wholly owned subsidiary of Tenant and a Tennessee chartered Federal Reserve member state bank (Bank), without the prior consent of Landlord. If Tenant should assign this Lease, or sublet any portion of the Premises, to Tenant, (x) Tenant shall simultaneously give to Landlord evidence of such assignment or sublease, which assignment or sublease shall be in form and substance acceptable to Landlord, (y) Tenant shall remain primarily liable to Landlord hereunder, and (z) Bank shall execute and deliver a Lease Authorization, in a form similar to Exhibit F attached hereto; provided, however, the information and representations of Tenant set forth in that Authorization shall be about or from Bank, not Tenant, and Bank may delete from such Authorization, to the extent Bank deems appropriate, Section (B)(4) thereof. If Tenant should assign this Lease to Bank, Landlord shall exercise its reasonable best efforts to amend this Lease to the extent required by any governmental agency charged by the law with the regulation of Bank.
(b) If Tenant requests Landlords consent to a Transfer, Landlord at its option may either (i) approve or disapprove the Transfer, or (ii) terminate this Lease with respect to the part of the Premises included in the proposed Transfer. In connection with each Transfer request by Tenant, Tenant shall obtain and furnish to Landlord all reasonable documents, financial reports, and other information Landlord reasonably requires in order to evaluate the proposed Transfer. Landlord shall advise Tenant of Landlords decision with respect to the requested Transfer within thirty (30) days after receipt of Tenants written Transfer request and all requested supporting materials. If Landlord refuses to consent to a requested Transfer, this Lease shall nonetheless remain in full force and effect. The consent of Landlord to one requested Transfer shall never be construed to waive the requirement for Landlords consent to other Transfers, nor shall any consent by Landlord or Transfer by Tenant discharge or release Tenant from any obligations or liabilities to Landlord.
(c) All cash or other proceeds of any Transfer in excess of the Base Rent and Additional Rent payable under this Lease shall be paid to Landlord, and Tenant hereby assigns to Landlord all rights it might have or ever acquire to the excess proceeds. No transferee of less than the entire Premises or Lease shall ever be entitled to exercise any extension, expansion, or other option provided in this Lease or to the return of the Deposit (as defined in Exhibit C hereto). If an Event of Default by Tenant occurs after any Transfer, Landlord may, at its option, collect rent directly from the transferee, and Tenant hereby authorizes any transferee to pay rent directly to Landlord at all times after receipt of written notice from Landlord. No direct collection by Landlord from any transferee shall constitute a novation or release Tenant from its obligations and liabilities under this Lease.
15. Transfers by Landlord . Landlord shall have the unrestricted right to sell, assign, mortgage, encumber, or otherwise dispose of all or any part of the Property or any interest therein. Upon sale or other disposition of the Property to a party who assumes the obligations of Landlord under this Lease, Landlord shall be released and discharged from obligations and
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liabilities thereafter accruing under this Lease (including liability for the return of any Deposit), and Tenant shall look solely to Landlords successor for performance of the Lease thereafter (including the return of any of the Deposit). Tenants obligations under this Lease shall not be affected by any sale, assignment, mortgage, encumbrance, or other disposition of the Property by Landlord, and Tenant shall attorn to anyone who thereby becomes the successor to Landlords interest in this Lease. Landlord warrants that Tenants rights will not diminish under this Lease if Building is transferred.
16. Subordination . This Lease is subject and subordinate to any and all mortgages now or hereafter encumbering the Property. Landlord represents that, so long as Tenant is not in default under any of the terms, covenants and conditions of the Lease beyond any applicable grace or cure period, the Tenant shall not be disturbed in the quiet and peaceful possession of the Premises. Such subordination shall be self-operative without the necessity of any further instrument, but if requested by Landlord, Tenant shall promptly execute and deliver to Landlord any instrument Landlord may reasonably request to evidence the subordination of this Lease to such mortgages or to acknowledge the assignment of this Lease as additional security for such mortgages. If any person acquires the Property through the exercise of remedies provided in a mortgage, Tenant shall automatically attorn to and become the tenant of the new owner of the Property, except that the new owner shall not be bound by any payment of rent for more than one (1) month in advance or liable for any act or omission of Landlord that occurred prior to the date the new owner acquired title and possession of the Property. Upon request by any successor owner of the Property, Tenant shall execute an instrument confirming the attornment required by this Lease.
17. Estoppel Certificates; Financial Statements; Security Deposit .
(a) Within ten (10) days after a written request by Landlord, Tenant shall deliver an estoppel certificate in a reasonable form supplied by or acceptable to Landlord certifying any facts that are then true with respect to this Lease, including without limitation that this Lease is in full force and effect, that, to the best of the tenants knowledge that no default exists on the part of Landlord or Tenant, that Tenant is in possession, that Tenant has commenced payment of rent, and that Tenant claims no defenses or offsets with respect to payment of rent under this Lease. Likewise, within ten (10) days after a written request by Tenant, Landlord shall deliver to Tenant an estoppel certificate covering such matter of fact with respect to Landlords obligations under the Lease as are reasonably requested by Tenant.
(b) If Landlord intends to sell the Property or obtain a loan secured by the Property, then within ten (10) days of Landlords written request, Tenant shall furnish Landlord its annual report and other reasonable documentation. Tenant will not have to provide unreasonable documentation. Tenant shall furnish concurrently with the execution of this Lease, a financial statement of Tenant. Tenant hereby represents and warrants that all the information contained therein is complete, true, and correct. Tenant understands that Landlord is relying upon the accuracy of the information contained therein. Should there be found to exist any inaccuracy within the financial statement which adversely affects Tenants financial standing, or should Tenants financial circumstances materially change, Landlord may demand, as additional security, an amount equal to an additional two (2) months rent, which additional security shall be subject to all terms and conditions herein, require a fully executed guaranty by a third party acceptable to Landlord, elect to terminate this Lease, or hold Tenant liable hereunder.
(c) Tenant shall, upon the execution and delivery of this Lease, deliver to Landlord the Deposit (as defined in Exhibit C attached hereto).
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18. Events of Default by Tenant . Each of the following constitutes an Event of Default by Tenant (herein so called).
(a) Tenant fails or refuses to pay any installment of Base Rent, Additional Rent, or any other sum payable under this Lease when due, and the failure or refusal continues for at least ten (10) days after the due date. Before declaring default, Landlord agrees to provide written notice to the Tenant and to give Tenant ten (10) days to cure.
(b) Tenant fails or refuses to comply with any provision of this Lease not requiring the payment of money, and the failure or refusal continues for at least thirty (30) days after written notice from Landlord; provided, however, if any failure by Tenant to comply with this Lease cannot be corrected within such 30-day period solely as a result of non-financial circumstances outside of Tenants control, and if Tenant has commenced substantial corrective actions within such 30-day period and is diligently pursuing such corrective actions, such 30-day period shall be extended for such additional time as is reasonably necessary to allow completion of actions to correct Tenants noncompliance.
(c) Tenants leasehold estate is taken on execution or other process of law in any action against Tenant.
(d) Tenant fails or refuses to take occupancy of the Premises upon the Commencement Date, or Tenant ceases to do business in, or abandons any substantial part of, the Premises.
(e) Tenant or any guarantor of this Lease files a petition under any chapter of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state, or a petition is filed against Tenant or any such guarantor under any such statute and not dismissed with prejudice within twenty (20) days of filing, or a receiver or trustee is appointed for Tenants leasehold estate or for any substantial part of the assets of Tenant or any such guarantor and such appointment is not dismissed with prejudice within sixty (60) days, or Tenant or any such guarantor makes and assignment for the benefit of creditors.
19. Landlords Remedies . If an Event of Default by Tenant occurs, Landlord shall be entitled then or at any time thereafter to do any one or more of the following at Landlords option:
(a) Enter the Premises if need be, and take whatever curative actions are necessary to rectify Tenants noncompliance with this Lease; and in that event Tenant shall reimburse Landlord on written demand for any reasonable expenditures by Landlord to effect compliance with Tenants obligations under this Lease.
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(b) Terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord, or without terminating this Lease, terminate Tenants right to possession of the Premises, and in either case, Landlord may re-enter and take possession of the Premises, evict Tenant and all parties then in occupancy or possession, and if permitted under applicable law, change the locks on the doors of the Premises without making keys to the changed locks available to Tenant.
(c) If Landlord has terminated this Lease, recover all Base Rent, Additional Rent, and other sums owing and unpaid under this Lease as of the date of termination plus reasonable legal fees plus damages measured by the difference in the rental value of the Premises if this Lease had been fully performed for the balance of the Term and the rental value of the Premises following the Event of Default by Tenant, which damages shall be payable, at the election of Landlord, (i) in monthly installments when and as rent would become due hereunder, were the Lease not so terminated, or (ii) in a final settlement. If Landlord elects such a final settlement, Landlord shall have a right to, and Tenant hereby agrees to pay, the positive difference between the total of all Base Rent, Additional Rent and other sums due and payable by Tenant hereunder for the then remainder of the Term and the reasonable rental value of the Premises for such period, such difference to be discounted to present value at a rate equal to 250 basis points over the then current 10 year U.S. Treasury Rate. The election of any other remedy hereunder shall in no way prejudice Landlords right hereunder at any time thereafter to demand final settlement or to seek any other right or remedy.
(d) If Landlord has not terminated this Lease (whether or not Landlord has terminated Tenants right to possession of the Premises or actually retaken possession), recover all Base Rent, Additional Rent, and other sums then or thereafter owing and unpaid under this Lease, together with all costs, if any, reasonably incurred in reletting the Premises (including remodeling, lease commission, allowance, inducement, and other costs), less all rent, if any, actually received from any reletting of the Premises during the remainder of the Term, which sums shall be payable in monthly installments when and as rent would become due hereunder. Landlord shall have the right following an Event of Default by Tenant to relet the Premises on Tenants account without terminating the Lease, any such reletting to be on such terms as Landlord considers reasonable under the circumstances. However, under this paragraph Tenant shall not be liable for more than the total of the Base Rent plus Additional Rent Tenant would have paid if the Lease had been fully performed for the balance of the Term.
(e) Recover all reasonable costs of retaking possession of the premises and any other damages incidental to the Event of Default by Tenant.
(f) Terminate all of Tenants rights to any allowances or under any renewal, extension, expansion, refusal, or other options granted to Tenant by this Lease.
(g) Exercise any and all other remedies available to Landlord at law or in equity, including injunctive relief of all varieties.
If Landlord elects to retake possession of the Premises without terminating this Lease, it may nonetheless at any subsequent time elect to terminate this Lease and exercise the remedies provided above on termination of the Lease. Nothing done by Landlord or its agents shall be
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considered an acceptance of any attempted surrender of the Premises unless Landlord specifically so agrees in writing. No re-entry or taking of possession of the Premises by Landlord, nor any reletting of the Premises, shall be considered an election by Landlord to terminate this Lease unless Landlord gives Tenant written notice of termination. Landlords remedies must be subject to Tennessee forcible entry and detainer statutes.
20. Landlords Default . It shall be an Event of Default by Landlord (herein so called) only if Landlord fails to comply with any provision of this Lease and the failure continues for at least thirty (30) days after written notice from Tenant to Landlord (with a copy to Landlords mortgagees if Tenant has been notified in writing of the identities and addresses of such mortgagees); provided, however, if any failure by Landlord to comply with this Lease cannot be corrected within such 30-day period solely as a result of non-financial circumstances outside of the control of Landlord, and if substantial corrective actions have commenced within 30-day period and are being diligently pursued, such 30-day period shall be extended for such additional time as is reasonably necessary to allow completion of actions to correct Landlords noncompliance.
21. Tenants Remedies . Except as otherwise provided in this Lease, in the Event of Default by Landlord, Tenant shall be entitled to any remedies available at law or in equity. Notwithstanding anything in this Lease to the contrary, Landlord shall never be liable in the event of Default by Landlord under any promise of indemnity in this Lease, or under any other provision of this Lease for any loss of business or profits of Tenant or other consequential damages or for punitive or special damages of any kind. None of Landlords officers, employees, agents, directors, shareholders, or partners shall ever have any liability to Tenant under or in connection with this Lease. Tenant agrees to look solely to Landlords interest in the Property for the recovery of any judgment against Landlord, and Landlord shall never be personally liable for any judgment.
22. Indemnification .
(a) Tenant shall indemnify and hold Landlord and its officers, employees, agents, directors, shareholders, and partners harmless against any loss, liability, damage, fine or other governmental penalty, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, resulting from: (i) Tenants noncompliance with or violation of any law, ordinance, or other governmental regulation applicable to Tenant or its use and occupancy of the Premises: (ii) the use, generation, storage, treatment, or transportation, or the disposal or other release into the environment, of any Hazardous Material by Tenant or its employees, agents, or contractors or as the result of Tenants use and occupancy of the Premises; or (iii) injury to persons or loss or damage to property to the extent caused by any negligent or wrongful act or omission of Tenant or its employees, agents, and contractors, but only to the extent the loss or damage would not be covered by property and casualty insurance of the type and amount required to be carried by Landlord pursuant to this Lease (whether or not actually so carried).
(b) Landlord shall indemnify and hold Landlord and its officers, employees, agents, directors, members, and managers harmless against loss, liability, damage, fine or other governmental penalty, cost, or expense (including reasonable attorneys fees and costs of
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litigation), or any claim therefore, resulting from: (i) Landlord noncompliance with or violation of any law, ordinance, or other governmental regulation applicable to Landlord or its use of the Building; (ii) the use, generation, storage, treatment, or transportation, or the disposal or other release into the environment, of any Hazardous Material by Landlord or its employees, agents, or contractors or as the result of Landlords use of the Building; or (iii) injury to persons or loss or damage to property to the extent caused by any negligent or wrongful act or omission of Landlord or its employees, agents, and contractors, but only to the extent the loss or damage would not be covered by property and casualty insurance of the type and amount required to be carried by Landlord pursuant to this Lease (whether or not actually so carried).
23. Protection Against Liens . Tenant shall do all things necessary to prevent the filing of any mechanics, materialmens, or other type of lien or claim against Landlord or the Property by, against, through, or under Tenant or its contractors. If any such lien or claim is filed, Tenant shall either cause the same to be discharged within twenty (20) days after filing, or if Tenant in its discretion and in good faith determines that such lien or claim should be contested and if all required consents or approvals of Landlords mortgagee are obtained, Tenant shall furnish such security as may be necessary to prevent any foreclosure proceedings against the Property during the pendency of such contest. If Tenant fails to discharge such lien or claim within such 20-day period or fails to furnish such security, then Landlord may at its election, in addition to any other right or remedy available to it, discharge the lien or claim by paying the amount alleged to be due or by giving appropriate security. If Landlord discharges or secures such lien or claim, then Tenant shall reimburse Landlord on written demand for all sums paid and all costs and expenses (including reasonable attorneys fees and costs of litigation) reasonably incurred by Landlord.
24. Holding Over . If Tenant remains in possession of any part of the Premises after the expiration of the Term of this Lease, whether with or without Landlords consent, a tenancy from month-to-month shall be created, the monthly installments of Minimum Rent payable during such holdover period shall be one hundred fifteen percent (115%) of the monthly installments of Minimum Rent payable immediately preceding such expiration, and all Additional Rent and other sums payable under this Lease shall continue to be due and payable. The acceptance of any rent or other payments from Tenant with respect to any holdover period shall not serve to extend the Term or waive any rights of Landlord, but Landlord may at any time refuse to accept rent or other payments from Tenant, and may re-enter the Premises, evict Tenant and all parties then in occupancy or possession, take possession of the Premises, and if permitted under applicable law, change the locks on the doors of the Premises without making keys to the changed locks available to Tenant. Tenant shall indemnify and hold Landlord harmless against any loss, liability, damage, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, related to Tenants holding over, including liabilities to any person to whom Landlord may have leased any part of the Premises.
25. Attorneys Fees . If an Event of default by Tenant or an Event of default by Landlord occurs, the Landlord shall be entitled to reasonable attorneys fees and any costs of litigation incurred in exercising and enforcing its remedies under this Lease.
26. Waiver . The failure of a party to insist upon the strict performance of any provision of this Lease or to exercise any remedy for an event of default. No waiver shall be effective unless expressed in writing signed by the waiving party. No waiver shall affect any condition other than
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the one specified in the waiver and then only for the time and in the manner stated. Landlords receipt of any rent or other sums with knowledge of noncompliance with this Lease by Tenant shall not be considered a waiver of the noncompliance. No payment by Tenant of a lesser amount than the full amount then due shall be considered to be other than on account of the earliest amount due. No endorsement or statement on any check or any letter accompanying any check or payment shall be considered an accord and satisfaction, and Landlord may accept any check or payment without prejudice to Landlords right to recover the balance owing and to pursue any other available remedies.
27. Leasing Commissions . Each of Landlord and Tenant represents and warrants to the other that it has not dealt with anyone claiming any entitlement to any commission in connection with this leasing transaction, except for Ron Taylor at Provision Commercial Realty, whose commissions Landlord has agreed to pay at a rate of 3.5% of the Base Rent due during the initial term of this Lease, i.e. .035 x $968,192.19 equals $33,886.73. Landlord shall pay such broker one-half of such sum upon the date hereof and the remaining half upon the date Tenant begins occupying the Premises. Each of Landlord and Tenant agrees to indemnify and hold the other harmless against any loss, liability, damage, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, for any leasing or other commissions, fees, charges, or payments resulting from or arising out of their respective actions in connection with this Lease.
28. Notices . Any notice may be given by (a) depositing written notice in the United States mail, postpaid and certified and addressed to the party at its notification address under this Lease with return receipt requested, (b) delivering written notice in person or by commercial messenger or overnight private delivery service to the party at its notification address under this Lease, or (c) by facsimile transmission of written notice deposited in the mail in the manner described above shall be effective on the third business day after it is so deposited, even if not received. Written notice given in person or by commercial messenger, overnight private delivery, or facsimile transmission in the manner described above shall be effective as of the time of receipt at the destination address as evidenced by a receipt signed by an employee of receiving party or by facsimile confirmation of transmission. The notification addresses of the parties are specified on the signature page(s) of this Lease. Each party shall have the right to change its address by not less than at least ten (10) days prior written notice to the other party.
29. Option to Extend Term . Tenant shall have 3 options (hereinafter referred to as the Extension Option), provided that this Lease shall be in full force and effect, without default on the part of Tenant hereunder beyond applicable notice and grace periods herein, on the date Tenant exercises the Extension Option, to extend the Term for an extension term (hereinafter referred to as the Extension Term) of five (5) years, to commence on the day (hereinafter referred to as the Extension Term Commencement Date) next succeeding the Expiration Date and to expire on the date (herein referred to as the Extension Term Expiration Date) which shall be the day preceding the fifth (5 th ) anniversary of the Extension Term Commencement Date. Tenant shall exercise the Extension Option by sending a written notice thereof (which notice is hereinafter referred to as the Extension Notice) to the Landlord by certified mail, return receipt requested, on or before the day which shall be six (6) months prior to the Expiration Date. If Tenant shall send the Extension Notice within the time and in the manner hereinbefore provided, the Term of this Lease shall be deemed extended for the Extension Term
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upon the terms, covenants and (a) any terms, covenants, or conditions hereof that are expressly or by their nature inapplicable to the Extension Term shall not apply during such Extension Term; (b) the Base Annual Rent payable by Tenant during the Extension Term (hereinafter referred to as the Extension Rent) shall be at the rate of rent in place during the last year of the Term, plus an annual 3.0% increase which shall apply to each year of the Extension Term.
30. Parking Spaces . All parking is open for use by all tenants except for specific designated parking spaces. This Tenant shall have two (2) designated parking spaces in the parking garage with locations determined by the Landlord.
31. Letter of Credit .
(a) On or prior to May 15, 2007, Tenant agrees to provide to Landlord an unconditional letter of credit issued by a federally-insured banking institution, naming Landlord as the beneficiary and being in form and substance similar to Exhibit G attached hereto and reasonably acceptable to Landlord (the LC). The LC shall be in the amount of $152,263.25, which is the sum of the Base Rent for the year following the Rent Commencement Date plus Tenants Prorata Share of the Operating Expenses (as defined in Exhibit D attached hereto); such Expenses are reasonably estimated by Landlord for the such year and were determined to be as follows: $4.00 x 6,477 sq. ft. of the base premises = $25,908.00. The LC shall be in full force and effect beginning the Rent Commencement Date and shall remain in full force and effect for the next twelve consecutive months. Tenant shall be responsible for obtaining the LC at its sole expense.
(b) In the event Moodys rating on the long term senior debt of the issuer of the LC becomes less than BBB while the LC is outstanding, then Landlord may notify Tenant of such fact and Tenant shall have thirty (30) days from the date of such notice within which to either (i) secure the LC with additional collateral acceptable to Landlord in its reasonable discretion, (ii) provide a substitute LC issued by a banking institution reasonably satisfactory to Landlord having its senior long term debt rated at least BBB by Moodys or an equivalent rating service, or (iii) have the LC confirmed by a banking institution reasonably satisfactory to Landlord and having a senior long term debt rated at least BBB by Moodys or an equivalent rating service; such confirmation shall be in a form reasonably satisfactory to Landlord. Failure to do one of the foregoing within such 30 day period shall entitle Landlord to present the LC for payment and hold the proceeds without interest as a security deposit under this Lease.
(c) Upon (i) the occurrence of an Event of Default by Tenant (other than a nonmonetary default described in Section 18(b) hereof), (ii) Landlord giving Tenant written notice of such occurrence (other than the occurrence of an Event of Default described in Section 18(e), as to which Landlord shall not be required to give any notice hereunder) and (iii) Tenant failing to cure, within ten (10) days of its receipt of such notice, any Event of Default about which Landlord gave (and was obligated under this Section 31(c) to give) Tenant notice, Landlord shall have the right, in addition to any or all other remedies contained herein, to present the LC for payment.
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32. Notice of Available Space . If and when any rentable space located on the first floor of the Building is or shall be available for lease, Landlord shall promptly inform Landlord of such availability.
33. Miscellaneous .
(a) If requested by Landlord, Tenant shall furnish appropriate evidence of the valid existence and good standing of Tenant and the authority of any parties signing this Lease to act for Tenant. If requested by Tenant, Landlord shall furnish appropriate evidence of the valid existence and good standing and the authority of any parties signing this Lease to act for Landlord.
(b) This document, including the Lease Addendum, embodies the entire contract between the parties, and supersedes all prior agreements and understandings between the parties related to the Premises, including all lease proposals, letters of intent, and similar documents. All representations, warranties, or agreements of an inducement nature, if any, are merged with, and stated in this document. This Lease may be amended only by a written instrument executed by both Landlord and Tenant.
(c) No consent or approval by Landlord shall be effective unless given in writing signed by Landlord or its duly authorized representative. Any consent or approval by Landlord shall extend only to the matter specifically stated in writing.
(d) The captions appearing in this Lease are included solely for convenience and shall be given any effect in construing this Lease.
(e) If any provision of this Lease shall not be affected. Each separate provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
(f) This Lease binds not only Landlord and Tenant, but also their respective successors, and assigns (to the extent assignment is permitted by this Lease).
(g) This Lease is governed by the laws of the State of Tennessee.
(h) All references to business days in this Lease shall refer to days that national banks are open for business in the city where the Property is located. Time is of the essence of this lease.
(i) All references to mortgage(s) in this Lease shall include deeds of trust, deeds to secure debt, other security instrument, and any ground or other lease under which Landlord may hold title to the Property as lessee. All references to mortgagee(s) in this Lease shall include trustees, secured parties, ground or other lessors, and other parties holding any lien, security, or other interest in the Property pursuant to any mortgage.
(j) Any liability of obligation of Landlord or Tenant arising during or accruing with respect to the term of this Lease shall survive the expiration or earlier termination of this Lease, including without limitation, obligations and liabilities relating to (i) the final adjustment of estimated installments of Additional Rent to actual Additional Rent owed, (ii) the condition of the Premises or the removal of Tenants property, and (iii) indemnity and hold harmless provisions of this Lease.
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(k) Tenant agrees not to record this Lease. Tenant may record a memorandum of this Lease in a form approved by Landlord in writing prior to recording provided Tenant pays all taxes, recording fees, or other governmental charges incident to such recording. The memorandum shall not disclose the rent payable under this Lease and shall expressly provide that it shall be of no further force or effect after the last day of the Term or on filing by Landlord of an affidavit that this Lease has expired or been terminated. Additionally, Tenant shall not disclose the terms of this Lease to any third party except (i) legal counsel to tenant, (ii) any assignee of Tenants interest in this Lease or sublessee of Tenant, (iii) as required by applicable law or by subpoena or other similar legal process, or (iv) for financial reporting purposes. Tenant may disclose this Lease to corporate lenders and outside audit firms.
(l) Landlord has delivered a copy of this Lease solely for Tenants review, and such delivery does not constitute an offer to Tenant or an option reserving the Premises. This Lease shall not be effective until executed by both parties,
(m) Lessor acknowledges that the Tennessee Department of Financial Institutions, the Federal Deposit Insurance Corporation and the Federal Reserve Board (individually, a Regulatory Authority, and collectively, the Regulatory Authorities) are reviewing this Lease in connection with the application for Bank of a Tennessee state banking charter and the application of Lessee for a financial holding company, both of which applications are or will be filed with one or more Regulatory Authorities. In the event that any Regulatory Authority shall request revisions to this Lease in connection with its review of these applications, Lessor and Lessee shall negotiate in good faith to make reasonable amendments to this Lease addressing the revisions required by any Regulatory Authorities and necessary to obtain the approval of such Authority to one or both of these applications.
(n) This Agreement may be executed in multiple originals or counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument. This Agreement may be executed by facsimile, with original signature pages to follow.
[ Signatures on next page ]
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IN WITNESS WHEREOF, the parties have caused this Lease to be executed pursuant to authority duly given as of the day and year first above written.
LANDLORD: | ||||
PCC INVESTMENTS II, LLC | ||||
By: |
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Its: |
MANAGING PARTNER |
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TENANT: | ||||
FRANKLIN FINANCIAL NETWORK, INC. | ||||
By: |
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Its: |
Founder |
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EXHIBIT A
The Real Property
Land in Williamson County, Tennessee, being Lot No. 5, on the Plan of Lincoln Square Subdivision, as shown on plat of record in Plat Book 29, page 117, in the Registers Office of Williamson County, Tennessee, to which plat reference is hereby made for a more particular description.
Being the same property conveyed to PCC Investments II, LLC, a Tennessee limited liability company, by Deed of record in Book 3414, page 745, Registers Office for Williamson County, Tennessee.
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EXHIBIT B
Work Letter
Suites 201, 202 and 203
This Work Letter is dated May 11, 2007, between PCC INVESTMENTS II, LLC, a TENNESSEE limited liability company (Landlord), and FRANKLIN FINANCIAL NETWORK, INC., a TENNESSEE corporation (Tenant).
RECITALS
A. This Agreement is attached to and forms a part of that certain Lease dated , 2007 (the Lease), pursuant to which Landlord has leased to Tenant 6,477 sq. ft. of certain office space (plus 815 sq. ft. of outdoor balcony space), specifically Suite 201, 202 and 203 of the building commonly known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, as such space is more specifically described in the Lease (the Leased Space).
B. Tenant desires to make certain Tenant Improvements to the Leased Space, upon the terms and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. | General Provisions |
1.1 Landlord shall provide Tenant with an allowance of Twenty and 00/100 Dollars ($20.00) per square foot for the 6,477 sq. ft. of the base premises in the Leased Space, i.e. $129,540.00 (the Allowance), for work in preparing the Leased Space for Tenants occupation, use and enjoyment under the terms of the Lease (the Work). The Work shall consist of the following: (i) the development of space plans, working drawings and all other Construction Documents (as described in Section 3.2 hereof), including supporting engineering studies (i.e., structural design or analysis, lighting or acoustical evaluations, or other studies as determined by Tenants architect) and (ii) all work necessary to construct the improvements necessary for Tenants occupation, use and enjoyment of the Leased Space, including, without limitation, all work shown on the working drawings approved by Landlord, which work will create finished ceilings, walls, and floor surfaces, as well as complete HVAC, lighting, electrical, and fire protection system for the Leased Space; provided, however, Landlord will not deliver the Leased Space to Tenant in order to commence the construction of such improvements until Landlord shall have paid for and caused the installation on the Leased Space of all sheetrock/gypsum board walls, poured floors, roof curbs, sprinkler heads (as turned up in the Leased Space), electrical panel (400 AMP) and HVAC units, which shall be installed to 1 ton per 320 square
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foot, and all of which shall be reasonably acceptable to Tenant The Allowance shall be available for the costs of constructing the leasehold improvements to the Leased Space and other costs appertaining to such construction (the Construction Costs), which improvements are described in the Construction Documents (the Tenant Improvements). The Construction Costs shall include, without limitation, (a) all architectural, legal and engineering fees and expenses pertaining to the Work; (b) all contractor and construction manager costs and fees pertaining to the Work; (c) all permits and taxes pertaining to the Work or the Tenant Improvements; (d) all labor and material for the Work; (e) all fees to governmental authorities for permits, inspections and certificates of occupancy pertaining to the Work or the Tenant Improvements; (f) utilities during the construction of the Tenant Improvements; (g) all costs associated with any change, modification, or addition to the space plan, working drawings or any other Construction Document, as approved by Landlord and Tenant (a Change Order); and (h) all other out-of-pocket costs and expenses incurred by Tenant and/or Landlord directly related to the preparation of any of the Construction Documents or the construction of the Tenant Improvements or other sums due on the Work; provided, however, no portion of the Constructions Costs shall include any expenses paid or used for any movable furniture, other tangible personal property not permanently attached to the Leased Space, working capital for Tenant, or Base Rent or any other payments due under the Lease. Also, Tenant acknowledges and agrees to pay Landlord a project management fee of $0 per square foot of the Leased Space for Landlords management services relating to the Work if Tenant engages as its architect for the Work The Innovations Group, LLC; such fee shall be $.50 per square foot if Tenant engages some other architect for the project. This project management fee shall be paid from the Allowance and shall not be included in the Operating Expenses or as Additional Rent. Notwithstanding anything herein to the contrary, Landlord makes no representation or warranty that the Allowance is sufficient to pay the full amount of the Construction Costs.
1.2 If the Construction Costs exceed the Allowance, then Tenant shall pay such excess prior to taking occupancy of the Leased Space. Tenant agrees that in the event Tenant defaults in the timely payment of that amount of the Construction Costs that exceeds the Allowance, Landlord (in addition to all other remedies available to it) shall have the same rights as those rights arising under the Lease upon an event of default under the Lease because of the failure to pay timely Base Rent or other sums due under the Lease.
1.3 If, because of an omission, delay or default hereunder by Tenant or anyone acting under or for Tenant, the Work is not substantially completed by September 15, 2007 (the Projected Completion Date), the obligations of Tenant under the Lease (including, without limitation, the obligation to pay Base Rent) shall nonetheless commence as of the Projected Completion Date.
1.4 The Substantial Completion of the Work shall be deemed performed when all of the following have occurred: (a) Tenants architect executes and delivers to Tenant and Landlord a Certificate of Substantial Completion with respect to the Tenant Improvements evidencing, among other things, that Tenant has constructed the Tenant Improvements in substantial compliance with the Construction Documents; (b) Tenant and/or Landlord shall have obtained a certificate of occupancy for the Leased Space from the governmental authority which has authority to issue such certificates in the jurisdiction wherein the Leased Space are located; and (c) Landlord and Tenant shall have accepted the Tenant Improvements as being in substantial conformity with the Construction Documents.
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1.5 Without the prior consent of Landlord, which consent Landlord can withhold according to its sole and unlimited discretion, neither Tenant nor Tenants authorized representatives (including Tenants Design Consultants, as defined in Section 2.1 hereof) will alter or modify or in any manner disturb the following systems or installations of the Building: fire or smoke rated partitions; Central (as hereinafter defined) plumbing systems; Central electrical systems; Central heating, ventilating and air conditioning systems; Central fire protection and fire alert systems; Central building maintenance systems; Central structural systems; and elevators. Only with Landlords express permission, which consent Landlord can withhold according to its sole and unlimited discretion, and under the direct supervision of Landlord or Landlords authorized representative shall Tenant or Tenants authorized representative alter, modify or in any manner disturb any such system or installation or any Branch (as hereinafter defined) of any such system or installation located within the Leased Space, including, but not limited to Branch plumbing system, Branch electrical system, Branch heating, ventilating and air conditioning system, and Branch fire protection and alert system. For purposes of this Agreement, the term Central shall be defined as that portion of the Building system or component which is common to and/or serves or exists for the benefit of all tenants in the Building, and shall include, but shall not be limited to, main fire loops on each floor of the Building and duct work to any variable air volume air-handling unit (a VAV box). For purposes of this Agreement, the term Branch shall be defined as that portion of any Building system or component which serves to connect or extend Central systems into the Leased Space.
1.6 All design, construction and installation of the Work shall conform to the requirements of applicable building, plumbing, electrical and fire codes and the requirements of any authority having jurisdiction over or with respect to the Work, as such codes and requirements may from time to time be amended or supplemented. Furthermore, all such design, construction and installation of the Work is subject to the prior written approval of Landlord.
1.7 Tenant agrees to use, as a part of the Work, Building standard materials for the following: corridor doors, VAV boxes, hardware, lights or other materials, unless other corridor doors, VAV boxes, hardware or lights are requested by Tenant and approved in writing by Landlord, which approval shall not be unreasonably withheld or delayed.
1.8 Tenant acknowledges that Landlord has entered into the Lease in reliance on the diligent and good faith cooperation and performance of Tenant in the timely completion of the Work. Also, Landlord hereby covenants and agrees that it will cooperate with Tenant, diligently and in good faith, in order that Tenant may be able to complete the Work by the Projected Completion Date.
1.9 Tenant shall not be entitled to any credit for any portion of the Allowance not expended as Construction Costs.
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2. | Preliminary Design Consultant Decisions and Schedule for Work Activities |
2.1 Not later than fourteen (14) days, Tenant shall inform Landlord in writing of the name and contact information for each of its architects, engineers and interior designers for, among other things, Tenants space plan for the Leased Space (Tenants Design Consultants).
2.2 Below is a schedule of activities for the Work.
(a) Tenants architect shall expeditiously prepare a space plan and forward it to Landlord. Upon receipt thereof, Landlord shall have five (5) days to review the space plan (or two (2) business days if The Innovations Group, LLC is the architect for the Work). If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), the plan shall be deemed approved. If Landlord objects to that plan, Tenant shall resubmit a revised space plan to Landlord, and such revised plan shall be treated as through it was the first proposed space plan prepared pursuant to this Section. The space plan approved by Landlord shall be the Final Space Plan.
(b) After Landlords approval of the Final Space Plan, Tenant shall promptly cause to be prepared and delivered to Landlord a preliminary estimate of the cost of the Tenant Improvements for Landlords approval or rejection. The estimated construction cost approved by Landlord, which approval shall not be unreasonably withheld or delayed, shall be the Estimated Construction Cost.
(c) Upon Landlords approval of the Estimated Construction Cost, Tenant shall cause to be prepared and delivered to Landlord the working drawings, a construction schedule for the Tenant Improvements, and a final cost proposal for the Tenant Improvements, all in accordance with the Final Space Plan. Upon receipt thereof, Landlord shall have five (5) days to review such drawings, schedule and proposal (or two (2) business days if The Innovations Group, LLC is the architect for the Work). If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), such drawings, schedule and proposal shall be deemed approved. If Landlord objects to any of the foregoing, Tenant shall resubmit revised working drawings, construction schedules and cost proposals pursuant to this Section until Landlord approves of all such Construction Documents.
(d) Landlords review, inspection or approval of plans, working drawings, construction schedules, cost proposals, any other Construction Document or the Tenant Improvements shall not be construed as any representation or warranty by Landlord that any of the foregoing comply with applicable legal requirements or that the Tenant Improvements are being constructed in accordance with the working drawings.
(e) Following approval by Landlord of the working drawings, the construction schedule, and the final cost proposal, Tenant shall cause applications to be made to the appropriate governmental authorities for necessary approvals and building permits for the Tenant Improvements. Upon receipt of the necessary approvals and permits, Tenant shall promptly begin construction of the Tenant Improvements and diligently proceed to completion of construction of the Tenant Improvements. All Tenant Improvements shall be constructed in a good and workmanlike manner and in compliance with all federal, state and local laws,
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ordinances, rules and regulations, and free of all liens and claims of contractors and material suppliers. During construction of the Tenant Improvements, Tenant shall cause all construction debris to be promptly removed and shall take all reasonable precautions to avoid safety and fire hazards. Tenant shall promptly repair any damage to the Building caused by Tenant, its employees, agents or contractors during the construction of the Tenant Improvements.
3. | Preparation of Construction Documents |
3.1 Landlord shall cooperate with Tenant in developing plans and specifications for the Work, which plans and specifications shall be prepared by Tenants Design Consultants. All costs associated with the review and approval of the plans and specifications by Landlord or Landlords architect and engineers shall be paid by Tenant, and such costs shall be applied against the Allowance. Tenant shall contract with each of Tenants Design Consultants, and Tenant shall be solely responsible for payment of all fees and/or payments due Tenants Design Consultants. Tenants architect (the Project Architect) and Tenants engineers must be licensed to practice his/her professional discipline in the State of Tennessee and shall be capable of providing appropriately stamped Construction Documents to local government officials for permit approvals. In connection with costs incurred in connection with the Work, Tenant shall not suffer or permit any mechanics liens or materialmens liens to be filed against the real property of which the Leased Space form a part or against the Tenants leasehold interest in the Leased Space.
3.2 Tenant and/or Tenants architect shall submit all Construction Documents to Landlord for Landlords approval. Upon receipt of each Construction Document, Landlord shall have five (5) days (or two (2) business days if The Innovations Group, LLC is the architect for the Work) to approve or deliver written comments regarding the Construction Documents to Tenant. If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), each such Construction Document shall be deemed approved. Landlord may withhold its approval of any space plan, working drawings, plans and specifications, Change Order or other Construction Document for any reason it deems appropriate, including, without limitation, for any of the following reasons: any such space plan, working drawing, plans and specifications, Change Order or other Construction Document: (a) exceeds or adversely affects the structural integrity of the Building, or any part of the heating, ventilating, air conditioning, plumbing, mechanical, electrical or communication system, or any other Central system of the Building; (b) is not approved by the holder of any mortgage or deed of trust encumbering the Building at the time the Work is proposed; (c) violates any agreement which affects the Building or binds the Landlord; or (d) does not conform to applicable building code or is not approved by any governmental, quasi-governmental, or utility authority with jurisdiction over the Project. Tenant may authorize changes to the Tenant Improvements during construction subject to Landlords prior approval in accordance with this Section 3.2. Prior to commencing any change to the Work, the Tenant Improvements or any Construction Document, Tenant shall prepare and deliver to Landlord, for Landlords approval, a Change Order. If Landlord fails to approve such Change Order within five (5) days after delivery by Tenant (or two (2) business days if The Innovations Group, LLC is the architect for the Work), Landlord shall be deemed to have approved the proposed change. The Construction Documents are or shall be, without limitation, space plans, working drawings, plans and specifications, architects contract, construction contracts, construction schedules and cost proposals for the Tenant
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Improvements and shall set forth or describe, without limitation, the Tenant Improvements, the requirements for the construction of the Tenant Improvements on the Leased Space and the quality of materials and systems required for the Leased Space. The Construction Documents shall comply with local building codes, regulations and laws and include, without limitation, mechanical (heating, ventilating and air conditioning), fire protection, plumbing and electrical drawings and specifications. The Construction Documents shall be provided to Landlord in the following formats: two (2) sets of each such document and one CD-ROM disk containing the documents in the CAD format approved by Landlord.
3.3 Tenant shall be responsible to coordinate the efforts of Tenants Design Consultants to ensure that no delays are caused in the planning or construction of the Work. Tenant shall pay the cost of any construction delays caused by Tenants Design Consultants.
3.4 Tenant shall indemnify Landlord against any and all claims, demands, liabilities, losses and expenses, including, without limitation, consultant fees, court costs and reasonable attorneys fees, arising from or caused in whole or in part, directly and indirectly, from the acts or omissions of Tenants Design Consultants in, on and around the Leased Space and the Building or arising from the services rendered by Tenants Design Consultants. The foregoing indemnity obligations shall survive the expiration or earlier termination of the Lease and this Work Letter.
4. | Completion of Leased Space |
4.1 Not later than ten (10) days after the Lease is executed by both parties, Tenant shall inform Landlord in writing of the name of, and the contact information for, the contractor that Tenant wants to construct the Tenant Improvements in the Leased Space (Tenants Contractor). Thereafter, Tenant shall contract with Tenants Contractor for the construction of the Tenant Improvements.
4.2 All work involved in completion of the Work shall be carried out by Tenants Contractor, at Tenants sole expense under the directions of the Project Architect. Tenants Contractor must be licensed as a contractor to perform the Work in the city, county and state in which the Leased Space are located. Tenants Contractor must be approved in writing by Landlord prior to the commencement of the Work. Tenant covenants not to begin the contractor bidding process, if any, for the Work until the Construction Documents are approved by Landlord. Landlord shall cooperate with Tenant and Tenants Contractor to promote the efficient and expeditious completion of the Work. Tenant shall not, in connection with fees due to Tenants Contractor, suffer or permit any mechanics liens or materialmens liens to be filed against the real property of which the Leased Space forms a part or against the Tenants leasehold interest in the Leased Space.
4.3 Upon receiving the consent from Landlord, Tenants Contractor may use the Final Space Plan and the Construction Documents.
4.4 During the Work, if there are any changes in the Work requested by or on behalf of Tenant, from the work as reflected in the Construction Documents, each such change must receive the prior written approval of Landlord, which approval shall not be unreasonably
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withheld or delayed, and must be paid for by Tenant, but which shall be subject to payment under the Allowance. Any dispute with respect to the Work shall be conclusively resolved by the Project Architect.
4.5 Prior to commencing the construction of the Work, Tenant must have the following insurance policies:
(a) | Commercial General Liability - Bodily Injury/Property Damage (occurrence basis), $1,000,000 each occurrence, or equivalent, subject to $2,000,000 aggregate . This policy shall be on a form acceptable to Landlord, endorsed to include Landlord as an additional insured, and state that this insurance is primary insurance as regards any other insurance carried by Landlord, and shall include the following coverage: Leased Space/Operations; Independent Contractors; completed operation for a period of two (2) years following the date of the final completion of the Work; Broad Form Contractual Liability; Broad Form Property Damage; and Personal Injury Liability with employees and contractual exclusions removed. |
(b) | All Risk Builders Risk Insurance - Prior to commencement of the Work, Tenants Contractor shall obtain on a policy acceptable to Landlord, and thereafter at all times during the performance of the Work maintain All Risk Builders Risk Insurance insuring the interest of Landlord and Tenants Contractor, as their interests may appear, set forth in the single policy, written on the completed value basis in an amount not less than the Construction Costs and all authorized change orders. |
(c) | Comprehensive Automobile Liability - Bodily Injury/Property Damage $500,000 per occurrence, single limit . This policy shall be on a standard form written covering all owned, hired and non-owned automobiles. This policy shall be endorsed to include Landlord as an additional insured and state that this insurance is primary as regards any other insurance carried by Landlord. |
(d) | Workers Compensation . Tenants Contractor shall maintain during the construction period, statutory workers compensation insurance as required by applicable law for all of Tenants Contractors employees or workers at the site of the work. In case any work is sub-contracted, Tenants Contractor shall require all of its subcontractors or agents to provide workers compensation insurance for all its employees. |
(e) | Umbrella Liability Insurance . Tenants Contractor shall furnish umbrella excess liability insurance coverage on a policy acceptable to Landlord, providing coverage in excess of the limits specified above (except for workers compensation). Such policy shall have the same inception and expiration dates as the underlying liability policies and coverage not less broad than those in the primary policies. Minimum limits shall be: $2,000,000 each occurrence; and $5,000,000 annual aggregate. |
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4.6 Prior to commencing and at all times during the construction of the Work, Tenant must have the following surety bonds:
(a) | Performance Bond . Tenant shall cause Tenants Contractor, as principal, to obtain and keep in effect a bond ensuring its full performance in accordance with the Construction Documents. Landlord shall be named as the obligee of the performance bond. The performance bond shall comply with the laws of the State of Tennessee in all respects, be issued by a surety authorized to furnish such instruments, and otherwise be in a form reasonably acceptable to Landlord. The penal sum of the performance bond shall be 100% of the anticipated cost of constructing the Work. Upon Landlords request, Tenant shall provide Landlord with written evidence of Tenants Contractor compliance with this Section; and |
(b) | Payment Bond . Tenant shall cause Tenants Contractor, as principal, to obtain and keep in effect a bond insuring its full payment of all subcontractors and suppliers in connection with the Work. Landlord shall be named as the obligee of the payment bond. The payment bond shall comply with the laws of the state in which the Leased Space are located in all respects, be issued by an surety authorized to furnish such instruments, and otherwise be in a form reasonably acceptable to Landlord. The penal sum of the payment bond shall be 100% of the anticipated cost of constructing the Work. Upon Landlords request, Tenant shall provide Landlord with written evidence of Tenants Contractors compliance with this Section. |
4.7 Tenant shall be responsible for the cost of repairing any damage to the Building core and shell caused by Tenant or Tenants Contractor. Such repairs shall be made under the supervision of Landlords architect.
4.8 Prior to commencing the Work, Tenant shall cause Tenants Contractor to deliver to Landlord the Access Agreement, in the form attached hereto as Schedule 1 , duly executed by Tenants Contractor, governing access and security to the Building.
4.9 Tenant shall be solely responsible for making all payments due to Tenants Contractor. In the event of a default by Tenants Contractor, Tenant shall be responsible for payment of all construction costs to complete the Work.
4.10 If Tenants Construction Work is not substantially completed by August 15, 2007 or not constructed by Tenants Contractor in accordance with the Construction Documents, in Landlords discretion (after a reasonable opportunity to cure), or Tenants Contractor shall be in breach of the Access Agreement (after a reasonable opportunity to cure), then Landlord shall have the right to deny access to the Building to Tenants Contractor. In such case, Landlord shall have the right to retain another contractor, at Tenants cost to complete the Work.
4.11 The Allowance shall be paid by Landlord to Tenant not more frequently than monthly as the Work progresses. It is a condition precedent to each disbursement of the Allowance that Tenant provide Landlord with an invoice for the desired draw, stating the dollar amount requested and the work for which payment is requested, together with evidence (such as
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a certification of the Project Architect) that such work has been performed and billed by Tenants architects, engineers, contractors, or other service providers. Each request for disbursement shall also include signed lien releases from Tenants Contractor and subcontractors for that portion of the Work for which Tenant is requesting reimbursement. Notwithstanding the foregoing, Landlord will not advance funds from the Allowance in excess of the then estimated completion level for the Work, as determined by Landlord in Landlords reasonable discretion [For example, the total Allowance is $100,000.00. Tenant submits an invoice for $20,000.00 of the Work (the First Request Work). Landlord determines that the Work is 10% complete after the First Request Work. Accordingly, assuming Tenant complies with the other provisions of this Section 4.11 and this Lease, Landlord would make a payment of $10,000.00 to Tenant for the First Request Work (10% of $100,000.00).] Notwithstanding the foregoing, the amount paid by Landlord to Tenant for a draw request will not exceed the amount of Tenants draw request. Nothing in this subsection shall make any architect, engineer, contractor or other service provider a third party beneficiary of the Allowance, and Tenant shall remain solely responsible for making all payments to them in connection with any work done for Tenant.
4.12 Within ten (10) days after the Work is substantially completed, Tenant shall cause Tenants architect to deliver to Landlord complete as-built drawings of the Work. Such plans may not be used in connection with the design of other suites in the Building or otherwise without the prior written approval of Tenant and Tenants architect. Such plans shall become the property of Landlord but may be used only to maintain and operate the Building. Also, within such ten (10) day period, Tenant shall cause Tenants Contractor to perform the following: (a) delivery to Landlord of signed lien releases from each of Tenants contractors and subcontractors; (b) issuance of a certificate of occupancy on the interior improvements of the Leased Space by the appropriate governmental authority; and (c) delivery of an assignment of construction warranties to Landlord by Tenant.
4.13 The failure by Tenant to perform any of its duties hereunder shall constitute an Event of Default under the Lease.
Executed as of the date above first written.
LANDLORD: | ||
PCC INVESTMENTS II, LLC | ||
By: |
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Title: | MANAGING PARTNER | |
TENANT: | ||
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: |
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|
Title: | Founder |
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Schedule 1
The Access Agreement
Building Name: Aspen Brook Village (Building)
Building Address: 3301 Aspen Grove Drive, Franklin, Tennessee
Building Owner: PCC Investments II, LLC (Landlord)
Property Manager: (Property Manager)
Tenant Name: Franklin Financial Network, Inc. (Tenant)
Tenants Suite or Leased Space description: Suites 201, 202 and 203 (the Leased Space)
Contractor Name: (Contractor)
CONTRACTOR HAS BEEN ENGAGED TO PERFORM CERTAIN TENANT IMPROVEMENTS TO THE LEASED SPACE IN CONNECTION WITH TENANTS USE AND OCCUPANCY OF THE LEASED SPACE PURSUANT TO A LEASE AGREEMENT WITH LANDLORD. BY EXECUTING THIS AGREEMENT, CONTRACTOR AGREES TO (A) PERFORM CONTRACTORS WORK IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT, (B) REQUIRE ITS SUBCONTRACTORS, IF ANY, TO SIGN AND DELIVER TO LANDLORD AND PROPERTY MANAGER, IF ANY, A DUPLICATE OF THIS AGREEMENT, AND (C) CAUSE ITS SUBCONTRACTORS TO COMPLY WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT.
BUILDING ACCESS AND SECURITY:
1. | Access to and use of existing facilities and site will be restricted and shall be under the direction and control of Landlord and Property Manager, if any. Landlord and Property Manager, if any, must be notified at least 24 hours prior to commencement of construction. Contractor shall present Landlord or Property Manager, if any, with a current Certificate of Liability Insurance covering its planned operations within the Building and a building permit for the work prior to the start of operations. |
2. | Contractor is to contact Landlord or Property Manager, if any, if contact or scheduling with Building security and engineering is required in order to construct any improvements in the Leased Space. Landlord, in Landlords sole discretion, may require that Building security be on duty during after hours work (as defined in Item 8 below). It will be necessary to have Building engineering present to coordinate any tie-in to existing Building systems. Contractor will pay the cost of after hour security (if required by Landlord) and engineering. |
3. |
All new door hardware shall conform to the Building standards. All door hardware not conforming to the Building standards shall be removed and replaced at Contractors sole expense. Temporary construction change keys shall be employed during Contractor operations. Landlord or Property Manager, if any, shall have a copy of all such keys so that access to all areas of the Building are available to Landlord or Property Manager, if any. Following completion of construction, |
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Landlord or Property Manager, if any, shall permanently key the space. Contractor shall deliver to Landlord and Property Manager, if any, all construction change keys in its/their possession at that time. |
4. | Contractor shall consult with Landlord or Property Manager, if any, about the use of Building utilities for construction use. Under no circumstances shall Contractor use Building electrical service, water service, gas service or any other utility, if any, for construction purposes without the prior consent of Landlord or Property Manager, if any. Without such consent and approval by Landlord or Property Manager, if any, Contractor shall be responsible for providing all temporary utilities necessary for construction. |
5. | Contractor shall utilize the designated loading dock/delivery zone as necessary for loading and unloading of equipment and supplies and shall promptly (within two hours) remove all vehicles from the delivery zone and park only in areas that have been designated for Contractors use by Landlord and Property Manager, if any. All vehicles violating the above policy shall be towed at Contractors expense. Contractor shall enter the Building via the freight/service Building entrance and shall only utilize the elevator designated for Contractor use by Landlord or Property Manager, if any. Protective pads shall be installed and used in the elevator at all times during Contractors use of the equipment. Contractor shall protect all Building core and shell flooring with 5 mill polyethylene sheets with an adhesive on one side. |
6. | If Contractor requires removal of exterior windows/doors to move required materials/equipment into the Building, Contractor shall contact Landlord or Property Manager, if any, in advance of such operations to gain its/their approval. |
7. | Contractors designated representative shall check in and out with Property Manager on a weekly basis. |
8. | Contractor shall schedule all after hours/weekend work with Landlord or Property Manager, if any, 24 hours prior to arrival to perform such work. After hours work shall mean any work that will take place (a) prior to 7 a.m. or after 7 p.m. Monday through Saturday or (b) on a national holiday. (See item 12 below for rules regarding after hours work). Building security will not permit after hours access to Contractor if such Contractors work has not been properly scheduled, except that unscheduled access shall be permitted to correct circumstances which may threaten imminent danger to the Leased Space, the Building or the Buildings occupants. |
9. | Landlord and Property Manager, if any, shall not be held responsible for loss, damage or theft of Contractors tools, equipment, materials, supplies, etc. |
10. | A 24-hour telephone answering machine service or pager should be maintained by Contractor to allow for 30-minute reply time for request from Landlord and Property Manager, if any. Names and telephone numbers (including after-hours numbers) of Contractors superintendent/foreman shall also be made available to Landlord and Property Manager, if any, prior to start of the work. |
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11. | The following categories of work and such other categories as Landlord and/or Property Manager shall determine in the future shall be performed as after hours work: access to an adjacent tenant suite to perform work; core-drilling, use of shot- driven pins, use of chipping hammers, use of any other tools or equipment that, in the opinion of Landlord and Property Manager, if any, produce excessive noise and/or vibration, any work that creates noxious fumes or odors in areas outside the Leased Space, any work involving utility taps, connections or the like which would interrupt services for existing tenants. If any Contractor operations, in the opinion of Landlord and Property Manager, if any, present a disruption to tenant services and operations, Landlord and Property Manager, if any, shall contact Contractor and inform its to cease operations immediately. Contractor shall comply with this order and coordinate with Landlord and Property Manager, if any, on resumption of activities. If any additional cost results from these requirements Contractor will be responsible for such cost. |
SAFEGUARDS TO LEASED SPACE AND PROPERTY:
1. | Contractor shall take proper precautions to protect all existing operations and property in the Building with which its work comes in contact, or over which it must transport, hoist or move materials, equipment, debris, etc. Contractor shall repair, to Landlords satisfaction, all damages caused by Contractor in the Building during construction connected with any improvements constructed on the Leased Space. Contractor shall bear the sole burden for such costs. |
2. |
Contractor shall coordinate all Fire Alarm System and Fire Sprinkler system related work with, Landlord or Property Manager, if any. No Fire Alarm System or Fire Sprinkler System related work will be performed until proper steps have been taken to secure that false alarms will not sound, that adequate Building protection will be maintained, and that the proper agencies have been notified of Fire Safety System down time. Contractor also will coordinate with Landlord or Property Manager, if any, for the proper restoration of Fire Alarm Systems or Fire Sprinkler Systems to normal operation once work is complete. Under no circumstances shall Contractor leave the Building until all Fire Alarm Systems and Fire Sprinkler Systems affected by Contractors work have been restored to normal operating status. Contractor shall take adequate steps to prevent false alarms or other unnecessary alarms that occur as a direct or indirect result of its work within the Building. These steps shall include protection of smoke detection devices from smoke, dust, and debris during construction, use of sweeping compound when sweeping floors to avoid dust, and proper precautionary measures taken when working around other alarm initiating devices such as pull stations, water flow detectors, and fire safety related power sources. All work that, for any reason, may activate the Fire Alarm System must be first reported to Landlord and Property Manager, if any, so that appropriate measure may be taken to prevent a false alarm. Such work includes, but is not limited |
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to, welding, sawing, sweeping, painting, soldering, brazing, etc. Contractor shall pay any fines or penalties levied by fire departments for false alarms caused by Contractors negligence or failure to adhere to the requirements of this Agreement. |
3. | Contractor shall observe the following fire safety precautions at all times: |
a. | An approved fire extinguisher must be within reach of all welding/brazing work or other open flames. |
b. | Acetylene, oxygen, or other types of pressurized gas bottles must be in an upright position and strapped to an immovable object to prevent the bottle from falling. |
c. | When arc welding, protective shields must be placed around the work to shield others from eye damage. |
d. | Contractor shall not use frayed, damaged, or improperly rated power cords and shall not string power cords across walk areas. |
e. | No flammable liquids may be brought into the Building without Landlord and Property Manager, if any, approval, or stored in the Building overnight. |
f. | Contractor shall maintain a one-hour rated separation between the area under construction and the rest of the Building at all times. Tenant demising walls and corridor walls shall serve this purpose. |
4. | During construction in the Leased Space, the main entrance door to the Leased Space should always be left unlocked. Contractor is responsible for their own tools and materials. |
5. | At all hours that construction personnel are working within the Leased Space, the main door to the Leased Space shall remain unlocked. After construction has been completed for the day, Contractor shall secure the Leased Space and lock the main door. |
6. | Contractor shall not under any circumstances leave materials and/or equipment unattended in public Building areas. |
7. | Contractor is responsible for clearing all debris from the Building core and shell areas each evening. |
8. | Contractor is responsible for the supply, maintenance and changing of air duct pre- filters and VAV filters in the designated working area. At the end of construction and after final cleaning, Contractor is responsible to clean any return air ducts and the inside of the air handler serving the space where the work was performed. |
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STANDARDS AND CONDUCT:
1. | Contractor is to provide to Landlord and Property Manager, if any, and pay all fees for all permits inspections, occupancy certificates, maintenance, and operations manuals, equipment warranties, and such other similar items necessary or resulting from the improvements constructed by it in the Leased Space. |
2. | Should Contractor perform any work that does not comply with the requirements of applicable codes and standards, Contractor shall bear all costs of correcting such defects. |
3. | Contractor must maintain existing plumbing, heating, air conditioning, fire protection, and other existing systems, and must retain all existing functions in service except for scheduled disruptions. All such disruptions of system functions must be scheduled with Landlord and Property Manager, if any, at least 24 hours in advance. No unscheduled disruptions are services are allowed. |
4. | All work involving core drilling, spraying, or other functions that may cause disrupting noise, fumes, or odor, or result in necessary access to any occupied tenant space, must be approved by Landlord and Property Manager, if any, and be performed after normal business hours or on weekends. |
5. | All penetrations of piping, duct work, conduits, etc. through walls, partitions, and floors shall be sealed to comply with applicable codes and the satisfaction of Landlord and Property Manager, if any, to maintain the integrity of Buildings fire safety rating. Also, any openings in walls and partitions made by Contractor for access to construction work shall be patched and/or repaired to comply with applicable codes and maintain existing fire ratings and meet the satisfaction of Landlord and Property Manager, if any. All core drills pieces are to be removed by Contractor. |
6. | It shall be the responsibility of Contractor to cooperate fully with other contractors working within the Building, if any, to keep the Leased Space in a clean and safe condition. At the end of each days work, Contractor shall properly store all of its tools, equipment, and materials and shall clean up its debris from the Building core and shell. Contractor shall provide a final clean up of any job areas of the Building core and shell that were affected by the Contractors work including walls, light fixtures, windowsills, counters, cabinets, floors, etc. |
a. | Temporary walk-off mats shall be provided by Contractor, as required, at all construction entrances to the Building. Polyethylene sheets a minimum 5 mill with an adhesive on one side shall be employed by Contractor to protect existing Building common area (lobbies and public corridors) flooring surfaces during construction operations. |
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b. | Sweeping compound will be used when sweeping to minimize and control dust. Failure to use sweeping compound will result in the mandatory halting of work as enforced by Property Manager. |
c. | Contractor is responsible for removing all construction debris from the site. The Buildings trash container (dumpster) will not be used for construction debris. Contractor shall discuss a trash removal plan with Landlord or Property Manager, if any, prior to the start of construction and obtain the approval of Landlord and Property Manager, if any. Under no circumstance shall any of the shell Building exterior windows be removed to facilitate the installation of a trash chute without prior approval by Landlord or Property Manager, if any. Contractor must furnish a trash receptacle and locate it in a location that is acceptable with Landlord and Property Manager, if any. Contractor will be back-charged for unauthorized use for Buildings trash facility. |
d. | Contractor should protect miniblinds/vertical blinds during construction. (This should be accomplished by either taking down the blinds or raising them to the top of the window and putting plastic over them.) |
7. | Contractor shall not utilize electrical/telephone rooms, mechanical rooms, or other unauthorized Building or parking areas for storage of tools, equipment, materials, supplies, etc. |
8. | Under no circumstances are public toilet facilities to be used. Contractor, in a location approved by Landlord and Property Manager, if any, will install approved facilities. |
9. | Contractor shall not lounge or eat in the Building lobbies, hallways, or stairwells. Breaks may be taken in either the assigned work area, or common areas such as a restaurant or snack bar. ALL TENANT SPACES ARE OFF LIMITS. TENANTS SHALL NOT BE DISTURBED. |
10. | Loud noises, radios, stereos, etc. are prohibited. |
11. | The use of tobacco, alcohol and drugs are prohibited in the Building. |
12. | Cursing, rough housing, leering and other objectionable conduct shall result in the immediate halting of work and expulsion of the responsible individuals from the Building. |
13. | Contractor shall notify the Landlord or Property Manager, if any, at least five (5) days in advance of completion of Contractors work so that Landlord or Property Manager, if any, may schedule and perform a final inspection. |
14. | Equipment installed by Contractor shall match all existing equipment in the Building (including, but not limited to, thermostats, mixing boxes, diffusers, lights, plumbing fixtures, doors and hardware, ceiling lay-in pads, VAV units). |
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15. | All work shall be bonded at 100% of the cost of the work. |
16. | Landlord shall be named an additional insured on Contractors insurance policy. |
17. | Contractor shall comply with all applicable laws or regulations regarding safety, including without limitation, the Federal Occupational Safety and Health Acct of 1970, as amended from time to time. |
18. | Contractor shall not clean any equipment in Building utility closets, restrooms, etc. Contractor, subcontractors, etc. shall not dump any material in hoppers, toilets or drains of any kind. |
19. | Contractor shall not use tools, ladders, lights, supplies, etc. owned by Landlord. |
20. | Contractor shall maintain on site MSDS information for any product used by Contractor or any subcontractor during the course of the work. |
GENERAL PROVISIONS, RELEASE OF LIABILITY AND INDEMNITY:
Contractor agrees to familiarize itself thoroughly with all site conditions, limitations, and regulations. The work shall be performed with the absolute minimum of interference with Landlords operation, and Contractor shall be subject to the reasonable directions of Landlord and Property Manager, if any, to enforce the same. Contractor shall use only authorized entrances, elevators, and storage areas as designated by Landlord and Property Manager, if any. Contractor shall secure and protect the work to be done hereunder and assume full responsibility for the condition thereof until finally accepted by Landlord or Property Manager, if any. Contractor shall be liable for any loss or damage to any work in place or any equipment or materials on the site caused by Contractor. Contractor shall provide adequate protection of all areas and keep all areas of use clean and free of debris and unacceptable noise levels. Contractor shall provide for removal of all trash and debris on a daily basis and, if the area is not maintained, Landlord or Property Manager, if any, has the right, with a 72 hour written notice, to employ its own forces to maintain the area and charge the cost to Contractor.
Contractor hereby forever releases and discharges Landlord and Property Manager, if any, and their respective agents, officers and employees (collectively the Released Parties) from any and all liability that results from Contractors presence and work in and around the Building. Contractor agrees to indemnify and save harmless the Released Parties from any and all fines, suits, claims, damages, demands, losses and actions (including reasonable attorneys fees and costs) for any injury to person or damage to or loss of property on or about the Building or the land on which the Building is located. Notwithstanding anything to the contrary herein,
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Contractor shall not be required to defend, indemnify or hold Released Parties harmless for any damage or loss caused by the negligence or willful misconduct of Landlord or the Property Manager or their employees and agents.
CONTRACTOR: |
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(Print or Type Contractors Name) |
By: |
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EXHIBIT C
Base Rent
(1) Base Rent shall be $18.25/SF for the base premises of the leased space of 6,477 sq. ft. and $10.00/SF for the balcony space of 815 sq. ft. Such Rent shall have an annual increase of 3.0%. The Base Rent is as follows:
Annual Base Rent |
Monthly
Base Rent |
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Base Premises | Balconies | Total | ||||||||||||||||||
Months 1-12 |
$ | 118,205.25 | + | $ | 8,150.00 | = | $ | 126,355.25 | $ | 10,529.60 | ||||||||||
Months 13-24 |
$ | 121,751.40 | + | $ | 8,394.50 | = | $ | 130,145.90 | $ | 10,845.49 | ||||||||||
Months 25-36 |
$ | 125,403.94 | + | $ | 8,646.33 | = | $ | 134,050.27 | $ | 11,170.86 | ||||||||||
Months 37-48 |
$ | 129,166.05 | + | $ | 8,905.72 | = | $ | 138,071.77 | $ | 11,505.98 | ||||||||||
Months 49-60 |
$ | 133,041.03 | + | $ | 9,172.89 | = | $ | 142,213.92 | $ | 11,851.16 | ||||||||||
Months 61-72 |
$ | 137,032.26 | + | $ | 9,448.08 | = | $ | 146,480.34 | $ | 12,206.69 | ||||||||||
Months 73-84 |
$ | 141,143.22 | + | $ | 9,731.52 | = | $ | 150,874.74 | $ | 12,572.89 | ||||||||||
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Total Annual Base Rent due in Initial Term |
$ | 905,743.15 | + | $ | 62,449.04 | = | $ | 968,192.19 |
(2) | Tenant shall provide a security deposit at execution of the Lease in the amount of one (1) months rent, which shall be returned at the end of the Term, provided that Tenant has complied with and is not in default of the terms of the Lease (the Deposit). The Deposit is provided to secure Tenants obligations under this Lease and is not an advance payment of Base Rent or any other rent or a measure of Landlords damages for Tenants breach of this Lease. Without prejudice to any other remedy, Landlord may use the Deposit to pay any delinquent Base Rent or Additional Rent or to satisfy any of Tenants other obligations under this Lease. After any such use of the Deposit, Tenant shall pay to Landlord, within five (5) days after demand, the amount necessary to restore the Deposit to its full amount. Landlord will return the unused portion of the Deposit to Tenant within sixty (60) days after the expiration of the Term and Tenants surrender of the Premises to Landlord as herein required and provided there then exists no Event of Default, less any amounts that Landlord is entitled to deduct from the Deposit (and an accounting thereof shall be provided to Tenant). If bankruptcy or other debtor-creditor proceeds ever exist against Tenant, the Deposit shall be deemed to be applied first to the payment of any Rent due Landlord for all periods prior to the filing of such proceedings. |
(3) | A Common Area Factor of 19% or 1,234 SF shall be added to cover the Common Area of the Building. This shall be charged at the same rate scale as Base Rent. |
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EXHIBIT D
Additional Rent Calculation
Additional Rent for any calendar year shall be calculated based upon Tenants Prorata Share of the Operating Expenses for the applicable calendar year. Tenants Prorata Share is 19%.
1. Operating Expenses (herein so called) shall consist, subject to the Limitation of Operating Expenses provision of the Lease Addendum, of all costs and expenses of Landlord or its property management company (Manager) accrued each calendar year for the management, operation, repair, and maintenance of the Property, including without limitation, costs and expenses for the following in connection with the Property:
(a) Wages, salaries and compensation (including fringe benefits) paid or incurred for employees of Landlord or Manager.
(b) Materials, supplies, replacement parts, equipment, and tools (whether purchased or leased).
(c) Services rendered by third parties, including services to be provided by Landlord pursuant to the terms of the Lease.
(d) Utility costs and services, including electrical, gas, water and sewer (Common Areas), refuse or garbage collection, fire protection, and security services (if furnished).
(e) Insurance premiums and policy deductibles paid, including property and casualty, rent loss, and public liability insurance.
(f) Management fees not to exceed 4.5% of gross revenues.
(g) Accounting services.
(h) Expenditures required to be capitalized in accordance with generally accepted accounting principles that are either required under any governmental law or regulation that was not applicable to the Property at the time the Building was constructed or that are intended to reduce Operating Expenses.
(i) Taxes (herein so called) for each calendar year shall consist of all real estate taxes, assessments (whether for drainage, sewage, or other public improvements), taxes on rent or on occupancy or use of the Property, and similar government impositions now or hereafter levied or assessed, whether general or special, and whether imposed by any governmental entity or special taxing or assessment district (excluding, however, any income, franchise, or similar tax imposed directly on Landlord or landlords net income from the Property), together with all costs incurred by Landlord in contesting same. Notwithstanding the foregoing, Operating Expenses shall not include costs or expenses for: (i) except as otherwise provided above, expenditures required to be capitalized in accordance with generally accepted accounting
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principles, depreciation, or amortization, or interest, (ii) leasing commissions or brokerage fees, (iii) repairs reimbursed by insurance carried or required to be carried by Landlord, (iv) utilities and other services separately charged to tenants, or (v) the Tenant Improvements or renovations to premises of other tenants.
2. In calculating Operating Expenses, all costs except those charged directly to Tenant or other building tenants shall be determined on an annualized basis, and costs that vary with occupancy (such as Common Areas janitorial service and utilities) shall be appropriately adjusted to reflect Operating Expenses at 100% occupancy of the Building for a full calendar year. In calculating Additional Rent, all rates per rentable square foot shall be based on the greater of ninety-five (95%) of the net rentable are of the Building or the actual annualized occupancy of the Building.
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EXHIBIT E
Rules & Regulations
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies and other similar areas in the Common Areas of the Property shall not be used for the storage of materials or disposal of trash, obstructed by tenants or others, or used by tenants or others for any purpose other than entrance to and exit from tenant premises.
2. Plumbing fixtures shall be used only for the purposes for which they are designed, and no sweepings, rubbish, rags, or other unsuitable materials shall be disposed into them. Damage resulting to any such fixtures from misuse by a tenant shall be the liability of said tenant.
3. Movement in our out of the Building of furniture, equipment, or any other bulky or heavy materials shall be restricted to such hours as Landlords property manager shall reasonably designate. Landlords property manager will determine the method and routing of the movement of said items so as to ensure the safety of all persons and property concerned, and Tenant shall be responsible for all costs and expenses associated therewith. Advance notice of intent to move such items must be made to Landlords property manager before the time of such move.
4. All deliveries to a tenants premises shall be made through entrances, following routes and movement instructions within the Building as directed by Landlords property manager. Delivery vehicles shall be permitted only in such areas as are designated by Landlord for deliveries to the Building.
5. Landlords property manager shall have the authority to approve the proposed weight and location of any safes and heavy furniture and equipment, which shall if determined to be necessary by Landlords property manager, stand on supporting devices approved by Landlords property manager in order to distribute the weight.
6. Corridor doors that lead to Common Areas of the Building (other than doors opening into the elevator lobby on floors leased entirely to a tenant) shall be kept closed at all times.
7. Each tenant shall cooperate with Landlords property manager in keeping its premises neat and clean. No tenant shall employ any person for the purpose of such cleaning other than the Buildings cleaning and maintenance personnel without prior approval of Landlords property manager.
8. No birds, fish or other animals shall be brought into or kept in, on or about the Building (except for seeing-eye dogs).
9. Each tenant shall comply with all security procedures (if any) both during business hours and after hours and on weekends. Landlords property manager will provide each tenant with prior notice of any such security procedures and any changes thereto promptly.
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10. No flammable or explosive fluids or materials shall be kept or used within the Building except in areas approved by Landlord, and each tenant shall comply with all applicable building and fire codes relating thereto.
11. No vending machines of any type shall be allowed in tenant space without the prior written consent of Landlords property manager, consent to not be unreasonably withheld.
12. Tenant shall provide Landlord with a set of duplicate keys and/or control cards, as applicable, to the Premises.
13. No machinery of any kind other than normal office equipment shall be operated by any tenant in its premises without the prior written consent of Landlords property manager.
14. Canvassing, peddling, soliciting and distribution of handbills on the Property (except for activities within a tenants premises that involve only such tenants employees) is prohibited. Each tenant is requested to notify Landlord (or Landlords property manager) if such activities occur.
15. Prior approval from Landlords property manager will be required for (a) access to Building mechanical, telephone or electrical rooms, (b) after-hours freight elevator use, (c) after-hours Building access by tenants contractors, or (d) access to the room of the Building by any person. No penetration of the roof of the Building shall be allowed in any circumstances. The tenant will be responsible for contacting Landlords property manager in advance for clearance of such tenant contractors, and tenants shall refer all contractors, contractors representatives, and installation technicians rendering any service to them to Landlord for Landlords supervision, approval, and control.
16. Each tenant and their contractors are responsible for removal of trash resulting from large deliveries or move-ins. Such trash must be removed from the Building and Building facilities may not be used for dumping. If such trash is not promptly removed, Landlord (or Landlords property manager) may cause such trash to be removed at the tenants sole cost and expense plus a reasonable additional charge to be determined by Landlord to cover Landlords administrative costs in connection with such removal.
17. Tenants may not install, leave or store equipment, supplies, furniture or trash in the Common Areas of the Property.
18. Each tenant shall provide Landlords property manager with names and telephone numbers of individuals who should be contacted in an emergency.
19. Electric current shall not be used for space heaters, cooking or heating devices or similar appliances without Landlords prior written permission.
20. Nothing shall be swept or thrown into the corridors, halls, elevator shafts or stairways.
21. No portion of any tenants premises shall at any time be used or occupied as sleeping or lodging quarters, nor shall personnel occupancy loads exceed limits reasonably established by Landlord for the Building.
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22. No vehicles shall be parked except in designated areas. No vehicles may be stored or abandoned on the Property. All persons on the property shall comply with traffic control and parking signs.
23. Except as otherwise set forth in the Lease, no antennas (including microwave or satellite dish antennas) shall be placed on the roof of the Building or elsewhere on the Property without the prior written consent of Landlord. Tenant may install a satellite dish receiver for its own usage with approval of installation and location by Landlord.
24. Smoking is not permitted in the building, and is permitted outside the building only in areas designated by Landlord.
Landlord reserves the right to amend and add to these rules as Landlord considers appropriate for the safety, care, maintenance, operation, and cleanliness of the Building, and for the preservation of good order therein. If any of these rules directly contradicts the other terms of the Lease, the terms of the Lease shall prevail.
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EXHIBIT F
Lease Authorization
(A) | Landlord hereby represents to Tenant: |
(1) Landlord has been duly established and is validly existing as an LLC under the laws of the State of Tennessee.
(2) This Lease has been authorized by all necessary action, has been executed and delivered by Landlord, and constitutes the legal, valid and binding obligations of Landlord, enforceable in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought.
(3) To the best of Landlords knowledge, the authorization, execution and delivery of this Lease do not, and the consummation of the transactions contemplated thereby and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time or both) under, any provision of any trust agreement, loan or credit agreement, note, bond, mortgage, deed of trust, indenture, lease or other agreement, permit, concession, franchise, license, judgment, order, decree by which Landlord or the Premises may be bound, nor to the best of Landlords knowledge will such action conflict with or result in any violation or default (with or without notice or lapse of time or both) under any statute, law, ordinance, rule or regulation by which Landlord or the Premises may be bound.
(4) As of the date hereof, to the best of Landlords knowledge no action, consent, approval, order of authorization of, or registration, declaration or filing with, any federal or state governmental body or agency is required in connection with the execution and delivery by Landlord of the Lease or the consummation by Landlord of the transactions contemplated hereby.
(B) | Tenant hereby represents to Landlord: |
(1) Tenant has been duly established and is validly existing as a corporation under the laws of the State of Tennessee.
(2) This Lease has been authorized by all necessary action, has been executed and delivered by Tenant, and constitutes the legal, valid and binding obligations of Tenant, enforceable in and in accordance with its to except as enforcement may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought.
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(3) To the best of Tenants knowledge the authorization, execution and delivery of this Lease do not, and consummation of the transactions contemplated thereby and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time or both) under, any provision of any trust agreement, loan or credit agreement, note, bond, mortgage, deed of trust, indenture, lease or other agreement, permit, concession, franchise, license, judgment, order, decree by which Tenant is a party or by which Tenant may be bound, nor to the best of Tenants knowledge will such action conflict with or result in any violation or default (with or without notice or lapse of time or both) under any statue, law, ordinance, rule or regulation by which Tenant may be bound.
(4) As of the date hereof, to the best of Tenants knowledge no action, consent, approval, order of authorization of, or registration, declaration or filing with, any federal or state governmental body or agency is required in connection with the execution and delivery by Tenant of this Lease or the consummation by Tenant of the transactions contemplated hereby.
TENANT: | ||
Franklin Financial Network, Inc. | ||
A Tennessee Corporation | ||
By: |
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Title: |
Founder |
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LANDLORD: | ||
PCC Investments II, LLC | ||
A Tennessee Limited Liability Company | ||
By: |
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Title: |
MANAGING PARTNER |
Tenants Notification Address: | Landlords Notification Address: | |
Franklin Financial Network, Inc. | PCC Investments II, LLC | |
2000 Mallory Lane | 3310 Aspen Grove Drive Suite 302 | |
Suite 130-120 | Franklin, Tennessee 37067 | |
Franklin, TN 37067-9231 | 615 773 8828 |
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EXHIBIT G
Irrevocable Letter of Credit
(PRINT ON LETTERHEAD OF ISSUER)
IRREVOCABLE STANDBY LETTER OF CREDIT NO:
BENEFICIARY: | CUSTOMER: | |
PCC Investments II, LLC | Franklin Financial Network, Inc. | |
Amount: $152,263.25 | Date: May 15, 2007 | |
Expiration Date: May 15, 2008 |
Dear Sir or Madam:
(Issuer) hereby establishes in favor of PCC Investments II, LLC (Beneficiary), for the account of Franklin Financial Network, Inc. (Customer), our Irrevocable Letter of Credit in the amount of One Hundred Fifty-Two Thousand, Two Hundred Sixty Three and 25/100 U.S. Dollars ($152,263.25).
The funds requested shall be available for payment upon presentation by Beneficiary of this Irrevocable Letter of Credit, a sight draft in an amount not exceeding $152,263.25 and the following:
1. | A statement signed by Beneficiarys authorized agent in the form attached hereto as Exhibit A certifying, among other things, that Customer is in default of one or more of its obligations to Beneficiary pursuant to that certain Lease Agreement dated as of , 2007, between Customer and Beneficiary pertaining to real property located in the office building known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, Suites 201-203. |
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Issuer hereby promises to Beneficiary that any drafts drawn under or in substantial compliance with terms of this Irrevocable Letter of Credit will be duly honored if presented to Issuer on or before May 15, 2008.
This Irrevocable Letter of Credit is subject to the Rules on International Standby Practices-ISP 98, International Chamber of Commerce Publication No. 590 (ISP98), and to the extent not inconsistent with ISP98, the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
ISSUER: |
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Authorized Signer |
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EXHIBIT A
To
Irrevocable Letter of Credit
[Issuing Bank Name]
[Issuing Bank Address]
Re: Irrevocable Standby Letter of Credit No.
PCC Investments II, LLC (Beneficiary) hereby certifies that (a) Franklin Financial Network, Inc. (Customer) and Beneficiary are parties to that certain Lease Agreement dated as of , 2007 pertaining to real property located in the office building known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, Suites 201-203 (the Lease), (b) Customer is in default of one or more of its obligations to Beneficiary arising under the Lease (other than the non-monetary default described in Section 18(b) thereof), (c) Beneficiary has given Customer written notice of such default or defaults, to the extent required upon the Lease, and (d) Customer failed, within ten (10) days of its receipt of such notice, to cure the default or defaults as described in such notice.
Should you need any other information from Beneficiary in regards to the above-mentioned Irrevocable Letter of Credit, please do not hesitate to call me at .
Sincerely, | ||
PCC Investments II, LLC | ||
Name: |
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Title: |
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Exhibit 10.5
TRIPLE NET OFFICE LEASE AGREEMENT
THIS TRIPLE NET OFFICE LEASE AGREEMENT (this Lease) is made and entered into on this 4 day of May, 2010, by and between COLUMBIA AVENUE PARTNERS, LLC , a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK , a Tennessee banking corporation (Tenant).
1. Leased Premises .
a. Subject to and upon the terms hereinafter set forth, and in consideration of the sum of Ten Dollars ($ 10.00) and the mutual covenants set forth herein, the receipt and sufficiency of which are hereby acknowledged, Landlord does hereby lease and demise to Tenant, and Tenant does hereby lease and take from Landlord, that certain improved real property municipally known as 722 Columbia Avenue located in Franklin, Williamson County, Tennessee, consisting of approximately 16,153 rentable square feet and more particularly described in Exhibit A attached hereto (the Premises).
b. Tenants taking possession of the Premises or any portion thereof shall be conclusive evidence against Tenant that such portion of the Premises was then in good order and satisfactory condition, subject to any punch list items identified in writing from Tenant to Landlord within thirty (30) days following completion of Landlords Work, and further subject to any latent defects in Landlords Work of which Tenant notifies Landlord in writing within one (1) year from the completion of Landlords Work. Except to the extent expressly set forth in this Lease, Tenant acknowledges that no promise by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees to alter, remodel, improve, repair, decorate or clean the Premises has been made to or relied upon by Tenant, and that no representation respecting the condition of the Premises by or on behalf of Landlord, any of Landlords beneficiaries, or any of their respective agents, partners or employees has been made to or relied upon by Tenant.
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2. Term . Subject to and upon the terms and conditions set forth herein, or in any exhibit hereto, the term (together with any extensions or renewals thereof, the Term) of this Lease shall commence on the Commencement Date (defined below) and shall expire one hundred eighty months (180) after the Commencement Date. Commencement Date shall mean the date Tenant begins its business operations in the Premises but in no event later than 30 days after Landlord completes Landlords Work and delivers possession of the Premises to Tenant by Landlord giving Tenant written notice. For purposes of clarification, immaterial punch list items identified by Tenant pursuant to Section 1(b) shall not affect the Commencement Date, unless they materially and adversely affect Tenants ability to (i) operate its business in the Premises or (ii) complete Tenants buildout of the Premises. The Commencement Date shall be set forth in a Commencement Agreement, identical in the form to that attached hereto as Exhibit B and executed by Landlord and Tenant.
3. Use . The Premises are to be used and occupied solely for the purpose of providing banking and financial services and office space and for any other lawful use, but for no unlawful purpose. Tenant shall not use or allow the Premises to be used for any improper, immoral, disreputable or objectionable purpose, and Tenant shall not cause, maintain or permit any nuisance or waste in, on or about the Premises. Without limitation of the foregoing, in no event shall Tenant use or permit the use of all or any portion of the Premises (i) as and/or for sleeping quarters and/or lodging or (ii) for any unlawful purpose of any kind whatsoever and howsoever arising.
4. Rent .
a. Commencing on the Commencement Date and continuing thereafter throughout the full Term of this Lease, Tenant hereby agrees to pay the annual Base Rental (defined and set forth below) and Additional Rental (defined below). The Base Rental shall be due and payable in advance in twelve equal monthly installments on the first day of each calendar month at Landlords address as provided herein (or such other address as may be designated by Landlord from time to time). If the Commencement Date is other than the first day of a calendar month or if this Lease expires on other than the last day of a calendar month, then the installments of Base Rental for such month or months shall be prorated.
Base Rental shall be, for the first year of the Term:
Year |
Per Square Foot First Floor | Per Square Foot Second Floor | Total Per Annum | Total Per Month | ||||||||||||
1 |
$ | 31.25 | $ | 26.25 | $ | 455,945.04 | $ | 37,995.42 |
Following the first year of the Term, Base Rental shall increase on each anniversary of the Commencement Date as set forth herein. Effective on each Adjustment Date (defined below), Base Rental shall be increased (relative to the previous years Base Rental) by the percentage increase, if any, in the CPI (defined below); provided, however, that each annual increase in Base Rental shall
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not be less than 1.5% of the previous years annual Base Rental and not more than 3.5% of the previous years annual Base Rental. Adjustment Date shall mean, as the case may require, each anniversary of the Commencement Date; provided, however, if the Commencement Date is other than the first day of the month, then Adjustment Date shall mean, as the case may require, the first day of the first month occurring after each anniversary of the Commencement Date. As used herein, CPI shall mean the Consumer Price Index for All Urban Consumers South Urban Area, All Items, U.S.A. Area, 1982-1984 = 100, as published by the Bureau of Labor Statistics, United States Department of Labor (U.S. City Average). If such index is discontinued, CPI shall then mean the most nearly comparable index published by the Bureau of Labor Statistics or other official agency of the United States Government as determined by Landlord.
b. All sums other than Base Rental due Landlord under this Lease (including, without limitation, amounts reimbursed to Landlord or for which Tenant must indemnify Landlord, late fees, and attorney fees and costs) shall be additional rental (Additional Rental). Base Rental and Additional Rental collectively are referred to as Rental or Rent.
5. Renewal Options .
a. Tenant shall have the right and option to renew the Lease (Renewal Option) for two (2) successive renewal periods of five (5) years each (each, an Option Term); provided, however, the Renewal Option is contingent upon the following: (i) there is not an Event of Default beyond all applicable cure period(s) at the time Tenant gives Landlord notice of Tenants intention to exercise the Renewal Option or at the expiration of the current Term; (ii) no event has occurred that upon notice or the passage of time would constitute an Event of Default, unless Landlord has given notice of default and Tenant is diligently attempting to cure such event; and (iii) Tenant is occupying the Premises. Following expiration of the final Option Term allowable hereunder, Tenant shall have no further right to renew the Lease pursuant to this Section 5.
b. Tenant shall exercise the Renewal Option by giving Landlord notice at least one hundred eighty (180) days prior to the expiration of the current Term. If Tenant fails to give notice to Landlord prior to the 180-day period, then Tenant shall forfeit the Renewal Option. If Tenant exercises the Renewal Option, then during the Option Term, Landlord and Tenants respective rights, duties and obligations shall be governed by the terms and conditions of the Lease, except as provided otherwise in this Section. Time is of the essence in exercising the Renewal Option.
c. The Base Rental for an Option Term shall be the Fair Market Rental Rate. Fair Market Rental Rate shall mean the market rental rate for the time period such determination is being made for office space in same class office buildings in the area of Franklin, Tennessee (the Area) of comparable condition for space of equivalent quality, size, utility, and location. Such determination shall take into account all relevant factors, including, without limitation, the following
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matters: the credit standing of Tenant; the length of the term; the fact that Landlord will experience no vacancy period and that Tenant will not suffer the costs and business interruption associated with moving its offices and negotiating a new lease; construction allowances and other tenant concessions that would be available to tenants comparable to Tenant in the Area (such as moving expense allowance, free rent periods, and lease assumptions and take over provisions, if any, but specifically excluding the value of improvements installed in the Premises at Tenants cost), and whether adjustments are then being made in determining the rental rates for renewals in the Area because of concessions being offered by Landlord to Tenant (or the lack thereof for the Option Term in question). For purposes of such calculation, it will only be assumed that Landlord is paying a representative of Tenant a brokerage commission in connection with the Option Term in question if Landlord is in fact paying a brokerage commission to a representative of Tenant in connection with the applicable Option Term.
6. Utilities and Service . Tenant shall pay, when due, all charges for gas, water, electricity and any and all other utility services used upon the Premises during the Term and any holdover period, including, without limitation, all tap, connection and/or meter fees and deposits.
7. Security Deposit . Tenant hereby agrees to pay to Landlord a security deposit equal in amount to one months Base Rental on the day this Lease is executed by Tenant (the Security Deposit). Upon the occurrence of any Event of Default by Tenant, Landlord may, from time to time, without prejudice to any other remedy, use the Security Deposit to the extent necessary to make good any arrears of Base Rental or Additional Rental or any other payment obligation hereunder, including, but not limited to, the cost of any damage, injury, expense, or liability caused by any Event of Default by Tenant hereunder. Any remaining balance of the Security Deposit shall be returned by Landlord to Tenant within a reasonable period of time after the termination or expiration of this Lease and the satisfaction of Tenants obligations hereunder. The Security Deposit shall not be considered an advance payment of rental or a measure of Landlords damages in case of default by Tenant. Tenant shall not be entitled to receive and shall not receive any interest on the Security Deposit, and Landlord may commingle the same with other monies of Landlord. In the event Landlord applies the Security Deposit or any portion thereof to the payment of any sum described above and this Lease is not terminated, Tenant shall immediately deposit with Landlord an amount of money equal to the amount so applied, and such amount shall be deemed to be part of the Security Deposit. In the event of a sale or transfer of Landlords interest in the Premises, Landlord shall have the right to transfer the Security Deposit to the purchaser or lessor, as the case may be, and upon any such transfer and acknowledgement of receipt of Security Deposit by such transferee, Landlord shall be relieved of all liability to Tenant for the return of the Security Deposit, and Tenant shall look solely to the new owner or lessor for the return of the Security Deposit.
8. Keys and Locks . Landlord shall furnish Tenant with two (2) keys for each standard lockset on code required doors entering the Premises from public areas. Additional keys will be Tenants responsibility and at Tenants expense. All such keys shall remain the property of
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Landlord. Upon termination of this Lease, Tenant shall surrender to Landlord all keys to any locks on doors entering or within the Premises, and give to Landlord the explanation of the combination of all locks for safes, safe cabinets and vault doors, if any, in the Premises.
9. Parking . Landlord shall provide approximately 50 parking spaces on the Premises for Tenants use.
10. Entry for Repairs and Inspection . Tenant shall permit Landlord and its contractors, agents or representatives to enter into and upon any part of the Premises during reasonable hours to inspect the same; perform maintenance and make repairs, replacements or improvements as set forth under this Lease; and, upon reasonable prior notice to Tenant, for the purpose of showing the Premises to prospective tenants or purchasers. Landlord shall use its reasonable efforts not to interfere materially with the operation of Tenants business during any such entry.
11. Laws and Regulations; Encumbrances . Tenant shall comply with, and Tenant shall cause its employees, contractors and agents to comply with, and shall use its best efforts to cause its visitors and invitees to comply with the following, to the extent Tenant has been made aware thereof: (i) all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the use, condition or occupancy of the Premises; and (ii) all recorded easements, operating agreements, parking agreements, declarations, covenants and instruments encumbering the Premises. Copies of all documents described above must be provided to Tenant by Landlord upon Landlord receiving written request from Tenant for the specific documents. Landlord warrants that to Landlords knowledge, no such ordinances or other matters of record prohibit Tenants use of the Premises as a branch banking facility.
12. Hazardous Substances . Tenant shall comply, at its sole cost and expense, with all laws, ordinances, orders, rules and regulations of all state, federal, municipal and other governmental or judicial agencies or bodies relating to the protection of public health, safety, welfare or the environment (collectively, Environmental Laws) in the use, occupancy and operation of the Premises. Tenant agrees that no Hazardous Substances (defined below) shall be used, located, stored or processed on the Premises by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees, and no Hazardous Substances will be released or discharged from the Premises. The term Hazardous Substances shall mean and include all hazardous and toxic substances, waste or materials, any pollutant or contaminant, including, without limitation, PCBs, asbestos and raw materials that include hazardous constituents or any other similar substances or materials that are now or hereafter included under or regulated by any Environmental Laws or that would pose a health, safety or environmental hazard. Tenant hereby agrees to indemnify, defend and hold harmless Landlord from and against any and all losses, liabilities (including, but not limited to, strict liability), damages, injuries, expenses (including, but not limited to, court costs, litigation expenses, reasonable attorneys fees and costs of settlement or judgment), suits and claims of any
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and every kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by any person, entity or governmental agency for, with respect to, or as a direct or indirect result of, the presence in or the escape, leakage, spillage, discharge, emission or release from the Premises of any Hazardous Substances by Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees. Tenant shall not be responsible for any Hazardous Substances located on the Premises prior to the date Landlord delivers the Premises to Tenant.
13. Taxes and Assessments .
a. Tenant shall pay all taxes, license fees, and special charges and assessments levied by any taxing authorities against personal property which Tenant owns and/or uses within, upon, or about the Premises, or by reason of the conduct and operation of its business thereon, including, without limitation, any special assessments or charges for water and/or sewers.
b. Tenant shall also pay any and all ad valorem real estate taxes on the Premises and any personal property taxes assessable on any personal property located on the Premises on or before the same are due to the taxing authority. Landlord shall forward all ad valorem tax bills for the Premises to Tenant immediately upon receipt. Landlord shall have the right to pay such taxes before they become delinquent if Tenant has not paid as required under this Lease, and such payment on Tenants behalf shall be immediately payable to Landlord by Tenant as Additional Rental.
c. Notwithstanding the foregoing, Tenant shall have no obligation under this Lease to pay: (i) income, profits, intangible, documentary stamps, franchise, corporate, capital stock, succession, estate, gift or inheritance taxes; (ii) any assessment or additional tax associated with a change in ownership of the Premises; or (iii) governmentally imposed impact fees related to further improvement of the Premises, including, but not limited to, the widening of exterior roads, the installation of or connection to sewer lines, sanitary and storm drainage systems and other utility lines and installations.
d. Tenant shall indemnify Landlord against all taxes (on personal property and real property), licenses fees, special charges and assessments paid for by Landlord on Tenants behalf, and Tenant shall indemnify Landlord against all costs and expenses (including attorney fees) in connection with same. Amounts due Landlord hereunder shall be Additional Rental.
e. Tenant may at its sole cost and expense, and in its own name and/or in the name of Landlord, dispute and contest any of the above-described taxes, license fees, special charges, assessments and/or ad valorem real estate taxes by appropriate proceedings diligently conducted in good faith, but only after Tenant has deposited with Landlord or with an applicable competent authority, in Tenants reasonable discretion, the amount so contested and unpaid which shall be held by Landlord (if Landlord is so chosen to hold such deposited funds) in an interest-bearing account until the termination of the proceedings, at which time the amount deposited shall be applied by
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Landlord toward the payment of the items held valid (plus any court costs, interest, penalties and other liabilities associated with the proceedings), and Tenants share of any excess shall be returned to Tenant. Tenant shall indemnify, defend and hold harmless Landlord from and against any cost, damage or expense, including attorneys fees, actually and reasonably incurred by Landlord, as Additional Rental, in connection with any such proceedings.
14. Leasehold Improvements .
a. Following completion of Landlords Work (defined in Exhibit C hereto) and Tenants acceptance of the Premises from Landlord, subject to the punch list items and latent defects identified in accordance with Section 1(b) above, Tenant accepts the same AS IS without any agreements, representations, understandings or obligations on the part of Landlord to perform any alterations, repairs or improvements except as expressly set forth in this Lease. ADDITIONALLY, EXCEPT AS EXPRESSLY SET FORTH IN THIS LEASE, LANDLORD MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE LEASEHOLD IMPROVEMENTS OR TO LANDLORDS WORK, AND ALL IMPLIED WARRANTIES WITH RESPECT TO THE PREMISES, INCLUDING WITHOUT LIMITATION THOSE OF SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY NEGATED AND WAIVED.
b. Tenant shall be entitled to a Tenant Improvement Allowance (defined and set forth in Exhibit C ). Notwithstanding the Tenant Improvement Allowance, Tenant agrees that it will make no exterior or structural alterations or additions to the Premises nor post or attach or affix to the exterior of the Premises, any signs, air conditioners or other objects without memorializing such proposed alterations, attachments, or fixtures in a Tenant work letter (in form acceptable to Landlord) and obtaining Landlords prior written consent to same. Notwithstanding the foregoing, Tenant shall have the right to make interior, non-structural alterations to the Premises without Landlords consent, so long as such alterations do not (i) affect the structure or electrical, plumbing, or mechanical systems of the Premises; or (ii) decrease the value of the Premises. Except as may be covered by Tenants Improvement Allowance, Tenant shall be responsible for the cost of such alterations or signs. Tenant shall have the right to install its trade fixtures and equipment in, upon and about the Premises; provided, however, that Tenant shall remove the same on or before the expiration of this Lease, and if so requested by Landlord, promptly after any termination of this Lease; and provided, further, that Tenant shall promptly thereafter repair all damage caused to the Premises by reason of such installation or removal.
c. Tenant shall indemnify and hold Landlord harmless from and against all costs (including reasonable attorneys fees and costs of suit), losses, liabilities, or causes of action arising out of or relating to any alterations, additions or improvements made by Tenant to the Premises, including, but not limited to, work not completed in a workmanlike manner and any contractors, mechanics or materialmans liens asserted in connection therewith. This indemnification obligation shall survive the Term of this Lease.
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d. Should any contractors, mechanics or other liens be filed against any portion of the Premises by reason of Tenants acts or omissions or because of a claim against Tenant, Tenant shall cause the same to be canceled or discharged of record by bond or otherwise within thirty (30) days after notice by Landlord. If Tenant shall fail to cancel or discharge said lien or liens, within said thirty (30) day period, Landlord may, at its sole option, cancel or discharge the same and upon Landlords demand, Tenant shall promptly reimburse Landlord for all reasonable costs incurred in canceling or discharging such liens, including attorney fees in connection with same.
15. Maintenance and Repairs to the Premises . Following completion of Landlords Work, but subject to any punch list items, latent defects, or other defects expressly covered by any warranty under this Lease, Tenant shall make and pay for any and all repairs or replacements to any and all portions of the interior and exterior of the Premises which are necessary to keep the same in a good state of repair or condition, such as, but not limited to, the roof and all structural members of the building, all fixtures, furnishings, lighting, air conditioning, plumbing, heating, electrical, floors, walls, ventilation systems, and any and all other parts of the building or other portions of the Premises. Tenant shall also maintain the parking lot, landscaping, plantings, and the exterior of the Premises in a good and neat condition at all times, and Tenant shall perform all maintenance, repairs, replacements and improvements required by any governmental law, ordination, rule or regulation. Notwithstanding anything in this Lease to the contrary, Tenant shall not be required to construct or install any item that is capital in nature, unless the need for such installation or construction is caused by Tenants negligence or willful misconduct. Without limiting Tenants maintenance and repair obligations hereunder, in the event Tenant fails to commence, within ten (10) days after written notice from Landlord to Tenant, or to diligently complete, any maintenance, repairs, replacements or improvements necessitated by Tenants negligence or willful conduct, or necessitated by Tenants waste of the Premises, Landlord may, at its option, perform any such maintenance, repairs, replacements or improvements deemed necessary by Landlord, and Tenant shall pay to Landlord on demand Landlords cost thereof, plus an administrative fee of ten percent (10%) of such costs as Additional Rental. As used in this Section 15, any requirement to maintain the Premises in a good state of repair or condition shall mean maintenance of the Premises in as good a condition as existed upon the initial completion of the improvements on the Premises, reasonable wear and tear and damage by casualty excepted.
16. Condemnation . If all or substantially all of the Premises, or such portion of the Premises as would render, in Landlords reasonable judgment, the continuance of Tenants business from the Premises impracticable, shall be permanently taken or condemned for any public purpose, then Landlord or Tenant may terminate this Lease. If less than all or substantially all of the Premises shall be taken, then Landlord shall have the option of terminating this Lease by written notice to Tenant within ten (10) days following the date of such condemnation or taking. If this Lease is terminated as provided above, this Lease shall cease and expire as of the date of the taking.
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In the event that this Lease is not terminated and a portion of the Premises is taken, Tenant shall pay the Base Rental and Additional Rental up to the date of the taking, and this Lease shall thereupon cease and terminate with respect to the portion of the Premises so taken. Thereafter the Base Rental and Additional Rental shall be adjusted on an equitable basis. If this Lease is not terminated, Landlord shall promptly repair the Premises building to an architectural unit, fit for Tenants occupancy and business; provided, however, that Landlords obligation to repair hereunder shall be limited to the extent of the net proceeds from such taking made available to Landlord for such repair. However, in the event such proceeds are not sufficient to restore the Premises to a condition reasonably suitable for the operation of Tenants business, Tenant may terminate this Lease, at the time Landlord notifies Tenant of the extent to which the Premises will be restored. In the event of any temporary taking or condemnation for any public purpose of the Premises or any portion thereof, this Lease shall continue in full force and effect except that Base Rental and Additional Rental shall be adjusted on an equitable basis for the period of such taking, and Landlord shall be under no obligation to make any repairs or alterations. In the event of any taking of the Premises, Tenant hereby assigns to Landlord the value of all or any portion of the unexpired term of the Lease and all leasehold improvements, and Tenant shall not assert a claim for a condemnation award therefor; provided, however, Tenant may pursue a separate award from the condemning authority for (a) relocation and moving expenses, and (b) compensation for loss of Tenants business.
17. Fire or Casualty . If the building or any improvement on the Premises shall be damaged in any way, in whole or in part, or rendered untenantable by fire or other casualty, Tenant shall restore the building to its original condition. Rent shall not abate or be reduced following any casualty loss or during any period of restoration. It shall be Tenants responsibility to obtain business interruption insurance coverage to insure against any loss Tenant may suffer as a result of any casualty damage to the Premises as well as Tenants inability to use all or any part of the Premises as a result of such casualty.
18. Insurance .
a. Liability Insurance . Tenant shall, during the entire term hereof keep in full force and effect a policy or policies of public liability, personal and property damage insurance with respect to the Premises, in which the limits shall be not less than $2,000,000 in the aggregate, and $1,000,000 per occurrence. Such amounts shall be increased every three (3) years based on any increase in the Consumer Price Index-All Urban during such 3-year period. The policies shall name Landlord and any lender of Landlord as an additional insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving all additional insureds thirty (30) days prior written notice. The insurance shall be with an insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance together with proof of premium payment, shall be delivered to Landlord initially and at each renewal hereof.
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b. Fire and Casualty Insurance . Landlord agrees to keep in full force and effect a policy or policies or broad form, all risk coverage insurance, in amounts not less than eighty percent (80%) of the reasonable reproduction or replacement value of the Premises improvements (including all buildings and structures thereon, and all portions thereof), determined annually, and with no reduction for depreciation, use, wear and tear. Landlord shall obtain at least three (3) separate bids for such insurance (which bids shall be for the same coverage and on comparable terms and conditions), and the least expensive policy shall be selected. With respect to damage or destruction of Premises improvements, which damage or destruction is covered, in whole or in part, by insurance, it is agreed that the proceeds from such insurance which are paid to Landlord shall be used and applied exclusively for the purpose of making replacements or repairs, if and only if such proceeds are sufficient in amount to complete such necessary replacements or repairs, which are paid to Landlord are insufficient therefor, Landlord will provide the deficiency, it being the intent of the parties hereto that Landlord shall have the obligation to rebuild, reconstruct or replace the Premises improvements damaged or destroyed by fire or other casualty with improvements of equal value, whether such casualty shall be insured or not insured against, and whether the proceeds of any such insurance are paid to Landlord. The insurance shall be with a good and A-rated insurance company licensed to do business in Tennessee, and a copy of the policy, or a certificate of insurance together with proof of premium payment, shall be delivered to Tenant initially and at each renewal thereof. For the first calendar year of the Term, Tenant shall pay to Landlord, on or before the Commencement Date, the total cost of such fire and casualty insurance for such period of time. For calendar years following the first calendar year of the Term, Tenant shall pay to Landlord, in advance of such calendar year, Landlords total estimated cost of such fire and casualty insurance for such upcoming calendar year. Within one hundred twenty (120) days following the expiration of each calendar year, the estimated cost of such fire and casualty insurance shall be reconciled against the actual cost of such insurance, and any deficiency shall be payable by Tenant to Landlord within ten (10) days following demand. If such reconciliation reveals an overpayment by Tenant, such excess shall be credited against the next installment of Rent due hereunder or, if the Term has then expired, such excess shall be refunded to Tenant within ten (10) days following demand. All amounts due Landlord under this section shall be Additional Rental.
19. Damages from Certain Causes . Landlord shall not be liable or responsible to Tenant for any loss or damage to any property or person occasioned by theft, fire, act of God, public enemy, riot, strike, insurrection, war, act or omission of any party other than Landlord, any nuisance or interference caused or created by any property owner other than Landlord, requisition or order of governmental body or authority, court order or injunction, or any cause beyond Landlords control or for any damage or inconvenience which may arise through repair or alteration of any part of the Premises as required by this Lease.
20. Hold Harmless .
a. Landlord shall not be liable to Tenant, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission
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or neglect of Tenant. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Tenant agrees to indemnify, defend by counsel reasonably acceptable to Landlord and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from Tenants occupancy of the Premises, or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises, or from any breach or default on the part of Tenant in the performance of any covenant or agreement on the part of Tenant to be performed pursuant to the terms of this Lease, or due to any other act or omission or willful misconduct of Tenant or any of its agents, employees, contractors, assigns, subtenants, guest or invitees.
b. Tenant shall not be liable to Landlord, its agents, servants, employees, contractors, customers or invitees for any damage to person or property caused by any act, omission or neglect of Landlord. Without limiting or being limited by any other indemnity in this Lease, but rather in confirmation and furtherance thereof, Landlord agrees to indemnify, defend by counsel reasonably acceptable to Tenant and hold Tenant harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, but not limited to, court costs, reasonable attorneys fees and litigation expenses) in connection with injury to or death of any person or damage to or theft, loss or loss of the use of any property occurring in or about the Premises arising from any breach or default on the part of Landlord in the performance of any covenant or agreement on the part of Landlord to be performed pursuant to the terms of this Lease, or due to any other grossly negligent act or omission or willful misconduct of Landlord or any of its agents or employees.
21. Default and Remedies .
a. | The occurrence of any of the following shall constitute a default under and breach of this Lease by Tenant (an Event of Default): |
i) | Failure by Tenant to pay any monetary amounts (including Base Rental and Additional Rental) due hereunder within ten (10) days following written notice of non-payment from Landlord to Tenant; |
ii) | Abandonment of the Premises (defined as any period of one hundred and eighty (180) consecutive days without operation of Tenants business in the Premises); |
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iii) | Failure by Tenant to observe or perform any of the covenants in respect of assignment and subletting of this Lease; |
iv) | Failure by Tenant to cure forthwith, immediately after receipt of notice from Landlord, any hazardous condition which Tenant has created or permitted in violation of law or of this Lease; |
v) | Failure by Tenant to complete, execute and deliver any instrument or document required to be completed, executed and delivered by Tenant within twenty (20) days after the initial written demand for same to Tenant; |
vi) | Failure by Tenant to observe or perform any other non-monetary covenant, agreement, condition or provision of this Lease, if such failure shall continue for thirty (30) days after written notice thereof from Landlord to Tenant; provided that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Tenant commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure; |
vii) | The levy upon execution or the attachment by legal process of the leasehold interest of Tenant, or the filing or creation of a lien in respect of such leasehold interest, which Hen shall not be released or discharged within thirty (30) days from the date of such filing; |
viii) | Tenant or any guarantor of Tenants obligations under this Lease becomes insolvent or bankrupt or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors, or applies for or consents to the appointment of a trustee or receiver for all or a major part of its property; |
ix) | A trustee or receiver is appointed for Tenant, any guarantor of Tenants obligations under this Lease or for a major part of either partys property and is not discharged within sixty (60) days after such appointment; |
x) | Any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding for relief under any bankruptcy law or similar law for the relief of debtors, is instituted (A) by Tenant or any guarantor of Tenants obligations under this Lease, or (B) against Tenant or any guarantor of Tenants obligations under this Lease and is allowed against it or is consented to by it or is not dismissed within sixty (60) days after such institution; or |
xi) | Tenants repeated failure to observe or perform any of the other covenants, terms or conditions hereof more than three (3) times, in the aggregate, in any period of twelve (12) consecutive months. |
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b. Upon the occurrence of an Event of Default, Landlord agrees to use reasonable efforts to mitigate its damages, but shall have the option to do and perform any one or more of the following in addition to, and not in limitation of, any other remedy or right permitted it by law or in equity or by this Lease:
i) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter re-enter the Premises and correct or repair any condition which shall constitute a failure on Tenants part to keep, observe, perform, satisfy, or abide by any term, condition, covenant, agreement, or obligation of this Lease, and Tenant shall fully reimburse and compensate Landlord, for Landlords actual cost incurred, on demand. |
ii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter demand in writing that Tenant vacate the Premises and thereupon Tenant shall vacate the Premises and remove therefrom all property thereon belonging to or placed on the Premises by, at the direction of, or with consent of Tenant within ten (10) days of receipt by Tenant of such notice from Landlord, whereupon Landlord shall have the right to re- enter and take possession of the Premises. |
iii) | Landlord, with or without terminating this Lease, may immediately or at any time thereafter, re-enter the Premises and remove therefrom Tenant and all property belonging to or placed on the Premises by, at the direction of, or with consent of Tenant. Any such re-entry and removal by Landlord shall not of itself constitute an acceptance by Landlord of a surrender of this Lease or of the Premises by Tenant and shall not of itself constitute a termination of this Lease by Landlord. |
iv) |
Landlord, with or without terminating this Lease, may immediately or at any time thereafter relet the Premises or any part thereof for such time or times, at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable, and Landlord may make any alterations or repairs to the Premises which it may deem necessary or proper to facilitate such reletting; and Tenant shall pay all reasonable costs of such reletting; and if this Lease shall not have been terminated, Tenant shall |
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continue to pay all rent and all other charges due under this lease up to and including the date of beginning of payment of rent by any subsequent tenant of part or all of the Premises, and thereafter Tenant shall pay monthly during the remainder of the term of this Lease the difference, if any, between the rent and other charges collected from any such subsequent tenant or tenants and the rent and other charges reserved in this Lease, but Tenant shall not be entitled to receive any excess of any such rents collected over the rents reserved herein. |
v) | Landlord may immediately or at any time thereafter terminate this Lease, and this Lease shall be deemed to have been terminated upon receipt by Tenant of written notice of such termination; upon such termination Landlord shall recover from Tenant all damages Landlord may suffer by reason of such termination including, without limitation, unamortized sums expended by Landlord for leasing commissions and construction of tenant improvements, all arrearages in rentals, costs, charges, additional rentals, and reimbursements, the cost (including court costs and attorneys fees) of recovering possession of the Premises, the cost of any alteration of or repair to the Premises which is necessary or proper to prepare the same for reletting and, in addition thereto, Landlord at its election shall have and recover from Tenant either (A) an amount equal to the excess, if any, of the total amount of all rents and other charges to be paid by Tenant for the remainder of the term of this Lease over the then reasonable rental value of the Premises for the remainder of the term of this Lease, or (B) the rents and other charges which Landlord would be entitled to receive from Tenant pursuant to the provisions of subsection (iv) if the Lease were not terminated. Such election shall be made by Landlord by serving written notice upon Tenant of its choice of one of the two said alternatives within thirty (30) days of the notice of termination. |
vi) | The exercise by Landlord of any one or more of the rights and remedies provided in this Lease shall not prevent the subsequent exercise by Landlord of any one or more of the other rights and remedies herein provided. Alt remedies provided for in this Lease are cumulative and may, at the election of Landlord, be exercised alternatively, successively, or in any other manner and are in addition to any other rights provided for or allowed by law or in equity. |
vii) |
No act by Landlord with respect to the Premises shall terminate this Lease, including, but not limited to, acceptance of the keys, institution of an action for detainer or other dispossessory proceedings, it being understood that this Lease may only be terminated by express written notice from Landlord to |
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Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant. |
(c) In the event Landlord fails to perform any of its obligations under this Lease and such non-performance continues for a period of thirty (30) days following written notice of default from Tenant, Landlord shall be deemed to be in material default of this Lease, and Tenant shall have all remedies available at law, in equity or under this Lease; provided, however, that such thirty (30) day period shall be extended for the time reasonably required to complete such cure, if such failure cannot reasonably be cured within said thirty (30) day period and Landlord commences to cure such failure within said thirty (30) day period and thereafter diligently and continuously proceeds to cure such failure.
22. Late Payments . In the event any installment of any Rental owed by Tenant hereunder is not paid within 10 days, Tenant shall pay a late charge equal to the greater of $ 100.00 or five percent (5%) of the amount due. The parties agree that such charge is a fair and reasonable estimate of Landlords administrative expense incurred on account of late payment. Should Tenant make a partial payment of past due amounts, the amount of such partial payment shall be applied first to reduce all accrued and unpaid late charges, in inverse order of their maturity, and then to reduce all other past due amounts, in inverse order of their maturity.
23. Attorneys Fees . If either party initiates any action to enforce its rights under this Lease or the terms hereof, the prevailing party shall be entitled to collect from the other party all court costs, reasonable attorneys fees and litigation expenses, including, but not limited to, costs of depositions and expert witnesses, that the prevailing party actually incurs in connection with such action.
24. No Waiver of Rights . No failure or delay of Landlord to exercise any right or power given it herein or to insist upon strict compliance by Tenant of any obligation imposed on it herein and no custom or practice of either party hereto at variance with any term hereof shall constitute a waiver or a modification of the terms hereof by Landlord or any right it has herein to demand strict compliance with the terms hereof by Tenant. No waiver of any right of Landlord or any default by Tenant on one occasion shall operate as a waiver of any of Landlords other rights or of any subsequent default by Tenant. No express waiver shall affect any condition, covenant, rule, or regulation other than the one specified in such waiver and then only for the time and in the manner specified in such waiver. No person has or shall have any authority to waive any provision of this Lease unless such waiver is expressly made in writing and signed by an authorized officer of Landlord.
25. Holding Over . In the event of holding over by Tenant after expiration or termination of this Lease without the written consent of Landlord, Tenant shall pay as rent for such
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holdover period one hundred fifty percent (150%) of the Rental that would have been payable if this Lease had not so terminated or expired). No holding over by Tenant after the term of this Lease shall be construed to extend this Lease, and Tenant shall be deemed a tenant at will, terminable on five (5) days notice from Landlord. In the event of any unauthorized holding over, Tenant shall indemnify Landlord against all claims for damages by any other tenant to whom Landlord shall have leased all or any part of the Premises effective upon the termination of this Lease.
26. Subordination .
a. If this Lease (and all its terms and conditions) shall become subject and subordinate to any mortgages or deeds of trust covering the Premises, whether or not for the full amount of all advances made or to be made thereunder and without regard to the time or character of such advances, the holder of any such mortgage or deed of trust (any of the foregoing, a Holder), shall execute a subordination, non-disturbance and attornment agreement in form and content reasonably acceptable to Tenant and such mortgagee providing (in part) that as long as an event of default on the part of Tenant is not in existence, Tenant shall not be disturbed in its possession of the Premises or have its rights hereunder terminated or modified by such mortgagee, except pursuant to the provisions of this Lease.
b. Tenant agrees that if Landlord defaults in the performance or observance of any covenant or condition of this Lease required to be performed or observed by Landlord hereunder, Tenant will give written notice specifying such default by certified or registered mail, postage prepaid, to any Holder of which Tenant has been notified in writing, and before Tenant exercises any right or remedy which it may have on account of any such default of Landlord, such party shall have the same amount of time as is afforded Landlord to cure such default of Landlord. Whether or not any deed of trust or mortgage is foreclosed, or any Holder succeeds to any interest of Landlord under this Lease, no Holder shall have any liability to Tenant for any security deposit paid to Landlord by Tenant hereunder, unless such security deposit has actually been received by such Holder. No Holder of which Tenant has been notified, in writing, shall be bound by any amendment or modification of this Lease made without the written consent of such Holder, nor shall any such party be liable for any defaults of Landlord under this Lease.
27. Estoppel Certificate . Tenant agrees that, from time to time upon request by Landlord, or any existing or prospective mortgagee or ground lessor, Tenant will complete, execute and deliver a written estoppel certificate certifying (a) that this Lease is unmodified and is in full force and effect (or if there have been modifications, that this Lease, as modified, is in full force and effect and setting forth the modifications); (b) the amounts of the monthly installments of Base Rental, Additional Rental and other sums then required to be paid under this Lease by Tenant; (c) the date to which the Base Rental, Additional Rental and other sums required to be paid under this Lease by Tenant have been paid; (d) that Landlord is not in default under any of the provisions of this Lease, or if in default, the nature thereof in detail and what is required to cure same; and (e) such other information concerning the status of this Lease or the parties performance hereunder reasonably requested by Landlord or the party to whom such estoppel certificate is to be addressed.
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28. Sublease or Assignment by Tenant .
a. The Tenant shall not, without the Landlords prior written consent, (i) assign, convey, mortgage, pledge, encumber, or otherwise transfer (whether voluntarily, by operation of law, or otherwise) this Lease or any interest hereunder; (ii) allow any lien to be placed upon Tenants interest hereunder; (iii) sublet the Premises or any part thereof; or (iv) permit the use or occupancy of the Premises or any part thereof by anyone other than Tenant or Tenants subsidiaries. Any attempt to consummate any of the foregoing without Landlords consent shall be void and of no force or effect. For purposes hereof, the transfer of the ownership or voting rights in a controlling interest of the voting stock of Tenant (if Tenant is a corporation) or the transfer of a general partnership interest or a majority of the limited partnership or membership interest in Tenant (if Tenant is a partnership or limited liability company), at any time throughout the term of this Lease, shall be deemed to be an assignment of this Lease.
b. For any proposed assignment or subletting Tenant shall submit to Landlord a copy of the proposed sublease or assignment, and such additional information concerning the business, reputation and creditworthiness of the proposed sublessee or assignee as shall be sufficient to allow Landlord to form a commercially reasonable judgment with respect thereto. If Landlord approves any proposed sublease or assignment, Landlord shall receive from Tenant as Additional Rental fifty percent (50%) of any rents or other sums received by Tenant pursuant to said sublease or assignment in excess of the rentals payable to Landlord by Tenant under this Lease (after deducting all of Tenants reasonable costs associated therewith, including reasonable brokerage fees and the reasonable cost of remodeling or otherwise improving the Premises for said sublessee or assignee), as such rents or other sums are received by Tenant from the approved sublessee or assignee. Landlord may require that any rent or other sums paid by a sublessee or assignee be paid directly to Landlord.
c. Notwithstanding the giving by Landlord of its consent to any subletting, assignment or occupancy as provided hereunder or any language contained in such lease, sublease or assignment to the contrary, unless this Lease is expressly terminated by Landlord, Tenant shall not be relieved of any of Tenants obligations or covenants under this Lease and Tenant shall remain fully liable hereunder.
d. Notwithstanding anything in this Lease to the contrary, so long as Tenant remains jointly and severally liable for all of its obligations under this Lease, Tenant shall have the right, without Landlords consent, to assign or transfer its interest in this Lease: (i) in connection with a merger or reorganization of Tenant or a sale of all or substantially all of Tenants assets (so long as such assignee expressly assumes all of Tenants obligations under this Lease in writing); (ii) to an
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entity wholly or partially owned or controlled by, or under common control with, Tenant; or (iii) to an entity whose (A) net worth is equal to or greater than the greater of the net worth or Tenant (1) on the date of this Lease or (2) at the time of such assignment; and (B) use of the Premises will be for banking and financial services; general business office use; or any other reputable business activity approved by Landlord in its reasonable discretion.
29. Quiet Enjoyment . Landlord covenants that Tenant shall and may peacefully have, hold and enjoy the Premises free from hindrance by Landlord or any person claiming by, through or under Landlord but subject to the other terms hereof, provided that Tenant pays the Base Rental, Additional Rental, and any other sums herein recited to be paid by Tenant and performs all of Tenants covenants and agreements herein contained. It is understood and agreed that this covenant and any and all other covenants of Landlord contained in this Lease shall be binding upon Landlord and its successors only with respect to breaches occurring during the ownership of the Landlords interest hereunder.
30. Assignment by Landlord . Landlord shall have the right to transfer and assign, in whole or in part, all its rights and obligations hereunder, in the Premises, and in such event and upon such transfer no further liability or obligation shall thereafter accrue against Landlord hereunder.
31. Limitation of Landlords Personal Liability . Tenant specifically agrees to look solely to Landlords equity interest Premises for the recovery of any monetary judgment against Landlord, it being agreed that Landlord (and its partners, members and shareholders) shall never be personally liable for any such judgment. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord or Landlords successors-in-interest or any suit or action in connection with enforcement or collection of amounts which may become owing or payable under or on account of insurance maintained by Landlord.
32. Force Majeure . Landlord and Tenant (except with respect to the payment of Base Rental or Additional Rental or any other monetary obligation under this Lease) shall be excused for the period of any delay and shall not be deemed in default with respect to the performance of any of the terms, covenants and conditions of this Lease when prevented from so doing by a cause or causes beyond the Landlords or Tenants (as the case may be) control (excluding financial inability to perform), which shall include, without limitation, all labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain any material or services, acts of God, or any other cause not within the reasonable control of Landlord or Tenant (as the case may be).
33. Surrender of Premises . Upon the termination of this Lease by lapse of time or otherwise or upon the earlier termination of Tenants right of possession, Tenant shall quit and surrender possession of the Premises (including all leasehold improvements made or installed by
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Tenant or by Landlord) to Landlord, broom clean, in the same condition as upon delivery of possession to Tenant hereunder, normal wear and tear excepted. Before surrendering possession of the Premises, Tenant shall, without expense to Landlord, remove all signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises and all debris and rubbish, and Tenant shall repair all damage to Premises resulting from such removal. If Tenant fails to remove any of the signs, furnishings, equipment, trade fixtures, merchandise and other personal property installed or placed in the Premises by the expiration of the Term or earlier termination of this Lease, then Landlord may, at its sole option, (i) deem any or all of such items abandoned and the sole property of Landlord; or (ii) remove any and all such items and dispose of same in any manner. Tenant shall pay Landlord on demand any and all expenses incurred by Landlord in the removal of such items, including, without limitation, the cost of repairing any damage to the Premises caused by such removal and storage charges (if Landlord elects to store such property).
34. Notices . Any notice or other communications required or permitted to be given under this Lease must be in writing and shall be effectively given or delivered if (a) hand delivered to the addresses for Landlord and Tenant stated below, (b) sent by certified or registered United States Mail, return receipt requested, to said addresses, (c) sent by nationally recognized overnight courier (such as Federal Express, UPS Next Day Air or Airborne Express), with all delivery charges paid by the sender and signature required for delivery, to said address; or (d) sent by facsimile to the facsimile numbers for Landlord and Tenant stated below and actually received, as evidenced by facsimile confirmation report, by Landlord or Tenant, as the case may be. Any notice mailed shall be deemed to have been given upon receipt or refusal thereof. Notice effected by hand delivery shall be deemed to have been given at the time of actual delivery. Either party shall have the right to change its address to which notices shall thereafter be sent and the party to whose attention such notice shall be directed by giving the other party notice thereof in accordance with the provisions of this Section.
Landlord: | Columbia Avenue Partners, LLC | |
320 Main Street, Suite 230 | ||
Franklin, Tennessee 37064 | ||
Facsimile: (615) 794-7910 | ||
Copy to: | Bone McAllester Norton PLLC | |
511 Union Street, Suite 1600 | ||
Nashville, Tennessee 37219 | ||
Attention: Jack Stringham, Esq. | ||
Facsimile: (615) 238-6301 |
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Tenant: | Franklin Synergy Bank | |
722 Columbia Avenue | ||
Franklin, Tennessee 37064 | ||
Facsimile: (615) 236-4639 |
35. Right of First Refusal . Landlord hereby grants to Tenant an ongoing right of refusal (the Right of Refusal), during the Term, to purchase the Premises upon the terms and conditions set forth below in this Section 35. If at any time during the Term, Landlord receives a bona fide offer that is acceptable to Landlord in Landlords sole and absolute discretion (an Offer) from a prospective purchaser of the Premises desirous of purchasing the Premises, then Landlord shall offer to Tenant in writing (the Refusal Notice) the right to purchase the Premises on the same terms and conditions as are set forth in the Offer. The Refusal Notice shall set forth all salient terms and conditions of the Offer, including, without limitation, (i) the offered price or consideration, (ii) the offered closing date, and (iii) any and all material terms of the conveyance so proposed. Tenant shall have the right to exercise the Right of Refusal by delivering written notice of such exercise to Landlord within thirty (30) days after delivery of the Refusal Notice to Tenant. If Tenant exercises the Right of Refusal, Tenant shall have the right to purchase the Premises on all the same terms and conditions as are set forth in the Offer and the Refusal Notice. Tenants rights under this Section 35 shall not be assignable or transferable.
36. Participation in Sale Proceeds . If Landlord sells the Premises at any time within the first three (3) years of the Term to any party other than Tenant or any subsidiary of Tenant (whether pursuant to the provisions of Section 35 or otherwise), then Tenant shall receive from Landlord ten percent (10%) of Landlords Profit (defined below) from such sale. Whether Landlord sells the Premises, and the terms and conditions of such sale, shall be in the sole and absolute discretion of Landlord and not subject to review or approval by Tenant. Notwithstanding anything herein to the contrary, nothing contained in this section shall be deemed to reduce or terminate the Term unless Landlord and Tenant shall expressly consent to the same in writing.
For purposes of this Section 36, the term Profit means:
a. During the first year of the Term, the difference between (i) the net proceeds from the sale of the Premises and (ii) the cost of the Premises to Landlord in the amount of $5,000,000.00;
b. During the second year of the Term, the difference between (i) the net proceeds from the sale of the Premises and (ii) the cost of the Premises to Landlord in the amount of $5,250,000.00; or
c. During the third year of theTerm, the difference between (i) the net proceeds from the sale of the Premises and (ii) the cost of the Premises to Landlord in the amount of $5,512,500.00.
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37. Miscellaneous .
a. This Lease shall be binding upon and inure to the benefit of the successors and assigns of Landlord, and shall be binding upon and inure to the benefit of Tenant, its successors, and, to the extent assignment may be approved by Landlord hereunder, Tenants assigns.
b. All rights and remedies of Landlord and Tenant under this Lease shall be cumulative and none shall exclude any other rights or remedies allowed by law. This Lease is declared to be a Tennessee contract, and all of the terms hereof shall be construed according to the laws of the State of Tennessee.
c. This Lease may not be altered, changed or amended, except by an instrument in writing executed by all parties hereto.
d. If Tenant is a corporation, partnership, limited liability company or other entity, Tenant warrants that all consents or approvals required of third parties (including but not limited to its Board of Directors, partners or members) for the execution, delivery and performance of this Lease have been obtained and that Tenant has the right and authority to enter into and perform its covenants contained in this Lease.
e. To the extent permitted by applicable law, the parties hereto shall and they hereby do waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other on any matters whatsoever arising out of or in any way connected with this lease, the relationship of landlord and tenant, Tenants use or occupancy of the Premises and/or any claim of injury or damage. In the event Landlord commences any proceedings for nonpayment of rent or any other amounts payable hereunder, Tenant shall not interpose any counterclaim of whatever nature or description in any such proceeding, unless the failure to raise the same would constitute a waiver thereof. This shall not, however, be construed as a waiver of Tenants right to assert such claims in any separate action brought by Tenant.
f. If any term or provision of this Lease, or the application thereof to any person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall be valid and shall be enforceable to the extent permitted by law.
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g. Time is of the essence in this Lease.
h. Tenant represents and warrants to Landlord that Tenant did not deal with any broker in connection with this Lease. Tenant shall indemnify, defend and hold Landlord harmless of, from and against any and all losses, damages, liabilities, claims, liens, costs and expenses (including, without limitation, court costs, reasonable attorneys fees and litigation expenses) arising from any claims or demands of any other broker or brokers or finders for any commission alleged to be due such other broker or brokers or finders claiming to have dealt with Tenant in connection with this Lease or with whom Tenant hereafter deals or whom Tenant employs.
i. If Tenant comprises more than one person, corporation, partnership, limited liability company or other entity, the liability hereunder of all such persons, corporations, partnerships or other entities shall be joint and several.
j. Landlords receipt of any monetary amount due hereunder (including Base Rental and Additional Rental) payable by Tenant hereunder with knowledge of the breach of a covenant or agreement contained in this Lease shall not be deemed a waiver of the breach. No acceptance by Landlord of a lesser amount than the full and complete installment of monetary amount due under this Lease (including Base Rental and Additional Rental) which is due shall be considered, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed, an accord and satisfaction. Landlord may accept a check or payment without prejudice to Landlords right to recover the balance due or to pursue any other remedy provided in this Lease.
k. Submission of this instrument for examination shall not constitute a reservation of or option to lease the Premises or in any manner bind Landlord, and no lease or obligation on Landlord shall arise until this instrument is signed and delivered by Landlord and Tenant.
l. Any claim, cause of action, liability or obligation arising under the term of this Lease and under the provisions hereof in favor of a party hereto against or obligating the other party hereto and all of Tenants indemnification obligations hereunder shall survive the expiration or any earlier termination of this Lease.
[Signature page follows.]
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IN WITNESS WHEREOF , the parties hereto have executed and sealed this Lease as of the date aforesaid.
LANDLORD: | ||
COLUMBIA AVENUE PARTNERS, LLC | ||
By: |
|
|
Title: | Managing Partner | |
TENANT: | ||
FRANKLIN SYNERGY BANK | ||
By: |
|
|
Title: | EVP, CFO |
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EXHIBIT A
Description of Premises
All that tract or parcel of land in Williamson County, Tennessee, and being more particularly described as follows:
Beginning at an iron pin on the westerly margin of Columbia Avenue at the southeast comer of the City of Franklin property, as of record in Book 2789, Page 664, Registers Office for Williamson County, Tennessee and being more particularly described as follows:
1. Thence S 11°0203 W, 91.84 feet along Columbia Avenue to a P.K. nail;
2. Thence N 79°3711 W, 175.51 feet along the Carlisle property line to an iron pin;
3. Thence S 12°1716 W, 15.09 feet along the Carlisle property line to a pipe;
4. Thence N 80°4821 W, 53.98 feet along the Mercy Health Services property line to an iron pin;
5. Thence N 11°4246 E, 244.92 feet along the Baisden property line to an iron pin;
6. Thence S 43°0641 E, 58.37 feet to an iron pin;
7. Thence S 72°1255 E, 69.01 feet to an iron pin;
8. Thence S 14°3302 W, 79.11 feet along the City of Franklin property line to an iron pin;
9. Thence S 72°3445 E, 116.62 feet along the City of Franklin property line to the point of beginning, containing 34,903.35 square feet or 0.80 acres.
Being the same property conveyed to Columbia Avenue Partners, LLC, a Tennessee limited liability company by deed from Larry L. Padgett, or record in Book 4667, page 446, Registers Office for said county.
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EXHIBIT B
Form of Commencement Agreement
COMMENCEMENT AGREEMENT
THIS COMMENCEMENT AGREEMENT (this Agreement), made and entered into as of this 4 day of May, 2010, is by and between COLUMBIA AVENUE PARTNERS, LLC , a Tennessee limited liability company, (Landlord), and FRANKLIN SYNERGY BANK , a Tennessee banking corporation (Tenant).
A. Tenant and Landlord entered into that certain Triple Net Office Lease Agreement dated May 4, 2010 (the Lease), for certain improved real property municipally known as 722 Columbia Avenue located in Franklin, Williamson County, Tennessee, consisting of approximately 16,153 rentable square feet, being more particularly described in the Lease; and
B. The parties desire to precisely establish the Commencement Date as set forth below.
NOW, THEREFORE, in consideration of the mutual and reciprocal promises herein contained, and pursuant to Section 2 of the Lease, Tenant and Landlord hereby agree that the Lease is hereby modified as follows:
1. The term of the Lease by and between Landlord and Tenant actually commenced on May 7, 2010 (the Commencement Date).
2. Except as modified and amended by this Agreement, the Lease shall remain in full force and effect.
IN WITNESS WHEREOF , Landlord and Tenant have caused this Agreement to be duly executed, as of the day and year first above written.
LANDLORD: | TENANT: | |||||||
COLUMBIA AVENUE PARTNERS, LLC | FRANKLIN SYNERGY BANK | |||||||
By: |
|
By: |
|
|||||
Title: | Managing Partner | Title: | EVP, CFO |
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EXHIBIT C
Landlords Work and Tenant Improvement Allowance
Landlords Work
Before the Commencement Date, Landlord shall complete on the Premises construction of the two-story, warm white box building shown on the plans and drawings attached hereto as Exhibit C-1 , which building shall consist of two floors (the first floor consisting of approximately 6,392 square feet and the second floor consisting of approximately 9,761) and shall include base electrical, plumbing, and mechanical systems (the Landlords Work). Landlord anticipates that Landlords Work shall be complete by May 1, 2010, but Landlord does not guarantee this anticipated completion date and Tenant represents and warrants that it is not relying on this anticipated completion date. Notwithstanding the foregoing, if Landlords Work is not complete by September 1, 2010, Tenant shall have a continuing right to terminate this Lease upon written notice to Landlord, in which event neither party shall have any further obligation to the other hereunder.
Landlord warrants to Tenant that Landlords Work shall be completed (i) in a good and workmanlike manner and (ii) in accordance with the requirements of all applicable laws, codes and ordinances of governmental authorities having jurisdiction over the Premises. Landlord further hereby assigns to Tenant all third-party warranties granted to Landlord in connection with Landlords Work.
Tenant Improvement Allowance
Following completion of Landlords Work and delivery of the Premises to Tenant, Landlord shall provide Tenant with an improvement allowance (the Tenant Improvement Allowance) of $20 per square foot of the building constructed under Landlords Work. The Tenant Improvement Allowance shall be payable to Tenant no earlier than the Commencement Date.
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EXHIBIT C-1
Building Plans and Drawings
[See attached.]
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EXHIBIT C-2
Delivery of Premises to Tenant
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Exhibit 10.6
LEASE
This Lease, dated as of this 21 day of May, 2012, is made by and between CHHM Properties, a (Landlord) and Franklin Synergy Bank, a Corporation (Tenant).
PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord certain space (Premises), containing approximately 1200 square feet of floor area. The premises are situated in a building (Building) known as 706 Columbia Ave, located at 706 Columbia Ave. The Building together with the land on which the Building is located is sometimes referred to herein as the Center. The location of the Premises is generally as set forth on Exhibit A attached hereto and incorporated herein by reference.
TERM AND LEASE YEAR
TERM . This Lease shall be for 24 of 24 months, commencing on 6/1/12 [or when Tenant opens for business, whichever comes first] (Commencement Date). If the Commencement Date is other than the first day of the month, the initial Term shall be extended by the number of days remaining in such month. All rental and other charges due hereunder shall accrue from the Commencement Date.
LEASE YEAR . Lease Year shall mean each successive twelve (12) month period during the Term, plus any partial month in which the Lease commences, the first of which shall commence on the Commencement Date.
USE
Tenant shall use the Premises for a office and for no other purpose without the prior written consent of Landlord. Landlord makes no warranty, express or implied, with respect to Tenants use of the Premises. The Premises shall not be used for any illegal purposes, in any manner to create any nuisance or trespass, nor in any manner to vitiate the insurance or increase the rate of insurance on the premises. Tenant shall not abandon or vacate the premises during the term of this Lease and shall use the Premises only for the aforesaid purposes herein leased until the expiration of the term hereof.
INITIAL MINIMUM RENT.
Tenant agrees to pay to Landlord as Minimum Rent (Minimum Rent).
Months 1-12 |
$ | 2400 Per Month | ||
Months 13-24 |
$ | 2400 Per Month |
Tenant agrees to pay the Minimum Rent, without notice or demand, in advance, on or before the first (1st) day of each and every successive calendar month during the Term, except that the first (1st) months rent ($2400) shall be paid upon execution of this Lease. Rent for any period less than one (1) month shall be prorated. All rent and other charges owed by Tenant under this Lease shall be prorated. All rent and other charges owed by Tenant under this Lease shall be paid to Landlord, without deduction, abatement, or offset, in lawful money of the United State of America and at such reasonable place as Landlord may designate. No termination of this Lease prior to the normal ending thereof shall affect Landlords right to collect rent for the period to termination.
PERCENTAGE RENTAL
Purposely Deleted
DEPOSIT
Upon execution of this Lease, Tenant shall deposit with Landlord the sum of ($0) Dollars. Said sum shall be held by Landlord as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease. If Tenant defaults with respect to any provision of this Lease, Landlord may apply all or any part of this security deposit for the payment of any rent or any other sum due hereunder, for payment of any amount which Landlord may spend by reason of Tenants default, or for the compensation of Landlord for any other loss or damage suffered by reason of Tenants default. If any portion of said deposit is so applied, Tenant shall, upon demand deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount. Landlord shall not be required to keep the security separate from its general funds, and Tenant shall not be entitled to interest on such deposit. If Tenant shall fully and faithfully perform every provision of this Lease to be performed by it the security deposit or any balance thereof shall be returned to Tenant within thirty (30) days following the date on which the final payment is due under this Lease or expiration of the Term, whichever is later.
INSURANCE & INDEMNITY
INSURING PARTY . Insuring Party shall mean the party who has the obligation to obtain the insurance required hereunder. Tenant shall pay the cost of all insurance required of Tenant as Insuring Party hereunder.
LIABILITY INSURANCE . Tenant shall, at Tenants expense, keep in force during the Term of this Lease, a policy of combined single limit, bodily injury and property damage insurance insuring Landlord and tenant against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be a combined single limit policy in an amount not less than One Million and No/100 ($1,000,000.00) Dollars. The policy shall contain contractual liability endorsements and shall insure performance by Tenant of the indemnity provisions of this Article 9 and shall otherwise be reasonably satisfactory to Landlord. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to, procure and maintain the same, but at the expense of Tenant. If, in the reasonable opinion of Landlord, the amount of liability insurance required hereunder is not adequate, Tenant shall increase said insurance coverage as required by Landlord. If alcoholic beverages sure to be sold for consumption on the Premises, Tenant, at the Tenants expense, shall keep in force liquor liability insurance coverage. Tenant shall name Landlord as additional insured.
PROPERTY INSURANCE .
Landlord shall keep in force during the Term of this Lease a policy or policies of insurance covering loss or damage to the Premises in amounts reasonably satisfactory to Landlord.
Upon demand, Tenant shall pay for any increase in the property insurance of the Building or any other improvements in the Center, if said increase is caused by Tenants acts, omissions, use or occupancy of the Premises.
Landlord will not insure Tenants fixtures, equipment, inventory, Tenant improvements, or other personal property.
INSURANCE POLICY . Insurance policies required hereunder shall be issued by companies satisfactory to Landlord. Upon request, the Insuring Party shall deliver to the other party copies of policies of all such insurance policies or certificates evidencing the existence and amounts of such insurance. No such policy obtained by Tenant shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Landlord. If Tenant is the Insuring Party, Tenant shall, within ten (10) days prior to the expiration of any such policies, furnish Landlord with renewals thereof, or Landlord may order such insurance and charge the cost thereto to Tenant, which amount shall be payable by Tenant upon demand.
WAIVER OF SUBROGATION . Tenant and Landlord each hereby waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or its property or the property of others under its control to the extent that such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. The Insuring Party shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. Notwithstanding the foregoing, the waiver of subrogation herein contained shall not be effective if its inclusion would cancel an insurance policy of any party required under this Article 9.
INDEMNITY . Tenant shall indemnify and hold harmless Landlord from and against any and all claims arising from Tenants use of the Premises, from the conduct of Tenants business, or from any activity, work or thing done, permitted, or suffered by Tenant in or about the Premises or Center. Tenant shall further indemnify and hold harmless Landlord from and against any and all claims arising from any breach or default in the performance of any obligation of Tenant under the terms of this Lease, or arising from any negligence of the Tenant, or from any other such claim or any related action or proceeding brought against Landlord. In case any such action or proceeding is brought against Landlord,
Tenant, upon notice from Landlord, shall defend the same at Tenants expense by counsel reasonably satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons, in, upon or about the Premises arising from any cause, including acts occasioned by Tenant or its customers, visitors, etc. except for the gross negligence or willful wrongdoing of Landlord, or insured claims to the extent insurance proceeds are available, and Tenant hereby waives all other claims in respect thereof against Landlord to the maximum extent allowed by law. Landlord shall indemnify and hold harmless Tenant from any and all liability or injury loss or damage to person or property arising out of the gross negligence or willful misconduct of Landlord.
EXEMPTION OF LANDLORD FROM LIABILITY . Except for negligence or willful wrongdoing by Landlord, Tenant hereby agrees that Landlord shall not be liable for injury to Tenants business; for any loss of income therefrom, or for damage to the improvements, trade fixtures, contents, goods, wares, merchandise or other property of Tenant (Tenants Contents) or for injury to Tenant, Tenants employees, agents, contractors, invitees, customers, or any other person in or about the Premises, regardless of the cause of such injury or damage. Landlord shall have no liability with respect to any such loss, damage or injury, whether such loss, damage or injury is caused by or results from fire, steam, electricity, gas, water or rain; from the breakage, leakage, obstruction, failure, insufficiency, or other defects of any heating, ventilation, air conditioning, utilities furnished, pipes, sprinklers, wires, appliances, plumbing, or lighting fixtures, or from any other cause, and whether the said loss, damage, or injury results from conditions arising at the Premises or at other portions of the Building, or from other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same are inaccessible to Tenant. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant of the Building.
OTHER INSURANCE . Tenant shall maintain all other insurance which Tenant is required to maintain by law.
FORCE MAJEURE . Tenant and Landlord shall not be required to perform any covenant or obligation in this Lease, or be liable for damages to each other, so long as the performance or nonperformance of the covenant or obligation is delayed, caused by, or prevented by an act of nature or force majeure, and any other causes not reasonably within the control of either party.
COMPLIANCE WITH LAW
Tenant shall comply with, and shall not permit or suffer anything to be done in or about the Premises in violation of any law, statute, ordinance or governmental rule or regulation now in force or hereafter arising.
ALTERATIONS & ADDITIONS
Tenant shall not make or allow any alterations, additions, or improvements to or of the Premises or any part thereof without first obtaining the written consent of Landlord, which consent may be withheld, conditioned or delayed in Landlords sole discretion.
REPAIRS
TENANTS REPAIRS . Tenant shall, through the term of this Lease, at Tenants expense, maintain the Premises in good order and repair, excluding only such repairs as Landlord is specifically obligated to make under this Article, subsection B. Tenant shall not suffer or commit waste. Tenants obligation to repair shall include the obligation to maintain, service and replace. Without limiting the generality of the foregoing, Tenant agrees that the obligation of Tenant to repair, maintain, service and replace shall extend to all doors to the Premises, and to all electrical, air conditioning, heating and sprinkler systems, plumbing and plumbing fixtures and sewerage pipes serving the Premises exclusively. Tenant shall be responsible for damage, from whatever causes, to all glass or plate glass in the Premises, for all damages to water or steam pipes in the Premises caused by freezing or neglect by Tenant, and for damages to the Property of other tenants of Landlord caused by the overflow or breakage of any such pipes in the Premises. Tenant hereby indemnifies Landlord and agrees to hold Landlord harmless from and against any and all costs, expenses, liens or charges against the Premises arising out of or related to any obligation or Tenant under this Article. Tenant shall, upon the expiration or sooner termination of the Term of this Lease, surrender the Premises to the Landlord in good condition, broom clean, ordinary wear and tear excepted. Any damage to adjacent premises caused by Tenants use of the Premises shall be repaired at the sole cost and expense of Tenant.
LANDLORDS REPAIRS . Landlord shall keep the HVAC for the Center, the roof, foundations and exterior walls of the Premises (exclusive of all glass and exclusive of all exterior doors) and the underground utility and sewer pipes outside the exterior walls of the Building in which the Premises are located in good repair, except that repairs rendered necessary by the negligence of Tenant, Tenants agents, employees and invitees are the responsibility of Tenant. Landlord, however, makes no warranty or representation concerning the condition of the Premises on the date of this Lease. Tenant shall promptly report in writing to Landlord any defective condition known to Tenant which Landlord is required to repair and Landlord shall have a reasonable time, not to exceed (30) days, after receipt of such notice in which to make such repairs and if the repairs cannot reasonably be completed within the 30 day period, a reasonable time thereafter so long as Landlord is diligently pursuing completion of the repairs. Failure by Tenant to report such condition shall make Tenant responsible to Landlord for any excess liability incurred by Landlord by reason of such failure.
LIENS
Tenant shall keep the Premises, the Building, and the Center free from all liens arising out of any work performed, services rendered, material furnished or obligations incurred by or on behalf of Tenant, and shall perform no work as Landlords agent.
ASSIGNMENT AND SUBLETTING
Tenant shall not directly or indirectly, voluntarily or involuntarily, or by operation of the law, assign, transfer, sell, mortgage, sublet or otherwise transfer or encumber all or any part of Tenants interest in this Lease or in the Premises, or any portion thereof, nor shall Tenant change ownership, without Landlords prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Landlords consent to any assignment or sublease shall not constitute a waiver of the rights of Landlord under this Article 14, and all later assignments or subleases shall be made likewise only with the prior written consent of Landlord. Any assignee of Tenant, at option of Landlord, shall become directly liable to Landlord for all obligations of Tenant hereunder, but no sublease or assignment by Tenant shall relieve Tenant of any liability hereunder.
UTILITIES
From and after the date on which Landlord delivers the premises to Tenant for construction or renovation (Possession Date), Tenant shall pay for all water, gas, heat, light, electric power, and sewer charges, telephone service and all other services and utilities supplied to the Premises, together with any taxes thereon.
PERSONAL PROPERTY TAXES
Tenant shall pay, or cause to be paid, before delinquency, any and all taxes and assessments levied or assessed which become payable during the Term hereof, based upon Tenants use of the Premises, or upon Tenants leasehold improvements, equipment, furniture, fixtures, and other personal property located in the Premises or for services rendered to Tenant by any governmental authority.
HOLDING OVER
If Tenant remains in possession of the Premises after the expiration or termination of the Term of this Lease without Landlords express written consent Tenant will be deemed to be
occupying the Premises as a tenant-at-will, subject to all the covenants and obligations of this Lease and at a minimum daily rental of 150% of the Minimum Rent provided hereunder. If any property not belonging to Landlord remains at the Premises after the expiration of the Term of this Lease, Tenant hereby authorizes Landlord to make such reasonable disposition of such property as Landlord may desire without liability for compensation or damages to Tenant.
ENTRY BY LANDLORD
Tenant shall permit Landlord to enter the Premises during reasonable hours, to inspect the same, to submit said Premises to prospective purchasers, lenders, or tenants, with reasonable advance notice to post notices or non-responsibility, and to repair the Premises and any portion of the Building, all as Landlord may deem necessary or desirable, without abatement of rent Tenant hereby waives any claim for damages or for any injury or inconvenience to, or interference with Tenants business, for any loss of occupancy or quiet enjoyment of the Premises, and for any other loss occasioned thereby unless Landlord is negligent.
DEFAULT AND REMEDIES
EVENTS OF DEFAULT . Any one (1) of the following shall be an Event of Default by Tenant: (1) if Tenant fails to pay rent or other money due hereunder when payment is due; (2) if Tenant fails to cure any other default or breach under the terms of this Lease within thirty (30) days after notice is sent by Landlord; or (3) if any person shall levy upon, attach or take Tenants leasehold interest or any other property of Tenant upon execution, foreclosure, attachment or other process of law; without Tenant promptly restricting said levy or event or (4) if Tenant makes an assignment of Tenants property for the benefit of any creditors; or (5) if Tenant becomes insolvent; or (6) if any bankruptcy, insolvency or reorganization proceedings or arrangements with creditors is commenced by or against Tenant; or (7) if a receiver or trustee is appointed for any of Tenants property; or (8) if Tenant fails to move into, take possession of and open the Premises for business as required hereunder; or (9) if this Lease is transferred, or the Premises are occupied by anyone other than Tenant, except as may be specifically permitted by this Lease.
REMEDIES .
In any of said Events of Default mentioned in Section A, above, Landlord shall have the option to terminate this Lease or Tenants rights hereunder, to repossess the Premises, and shall, in either case, have the right immediately and without notice or demand, to enter the Premises and remove Tenant, Tenants legal representatives, and other occupants, and their property, by legal proceedings or otherwise. Tenant hereby waives any claim it might have for trespass or conversion.
In case of re-entry or dispossession by legal proceedings or termination of this Lease by Landlord as herein provided, Tenant agrees it will be liable to Landlord for all the reasonable expenses Landlord incurs for legal fees related to enforcing this Lease and making any new lease with another Tenant; brokerage commissions in obtaining another tenant; and expenses incurred in putting the Premises in good order and preparing the Premises for re-rental. In addition, Tenant agrees it will remain liable to Landlord for all rents and other charges accrued at the time of such re-entry, dispossession or termination and for Landlords damages arising out of the failure of Tenant to observe and perform Tenants covenants herein contained. In addition, for each month of the period which would otherwise have constituted the balance of the Term, Tenant shall remain liable for and pay on demand any deficiency between the monthly installment of Minimum Rent plus all other rental due hereunder and all other charges that would have been payable for the month in question, less the net amount, if any, of the rents actually collected by Landlord from a new tenant. Landlord may relet the Premises, or any part thereof, for a term which may be less or more than the period which would have constituted the balance of the Term and may grant concessions or free rents to a new tenant. Landlords refusal or failure to relet the Premises or any party thereof to any new tenant for any reasonable reason shall not release or affect Tenants liability, and Landlord shall not be liable in any way for failure to relet the Premises, or if relet, for failure to collect the rent under such reletting. Any monies collected from any reletting shall be applied first to the foregoing expenses and damages of Landlord and then to the payment of Minimum Rent and other payments due from Tenant to Landlord. Tenant will not be entitled to any surplus.
ADDITIONAL REMEDIES . In the event of an uncured Event of Default or a threatened Event of Default by Tenant, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings, and other remedies were not herein provided. The seeking of any particular remedy shall not preclude Landlord from any other remedy in law or in equity.
DEFAULT BY LANDLORD
Landlord shall not be in default unless Landlord fails to perform a material obligation hereunder within the time periods set forth herein, or if no time period is indicated, then within a reasonable time, after written notice of default by Tenant to Landlord.
RECONSTRUCTION
If the Premises are totally destroyed by storm, fire, lightning, earthquake or other casualty, this Lease shall terminate as of the date of such destruction, and all rent shall be accounted for as between Landlord and Tenant through such date. If the Premises are damaged but
not wholly destroyed by any of such casualties, so long as Tenant has functional space in order to run its business in a normal fashion and in accordance with applicable law, this Lease shall not terminate and, rent shall abate in such proportion as use of the Premises has been destroyed, and Landlord shall restore the Premises to substantially the same condition as before damage as speedily as practicable, whereupon full rent shall recommence; provided, however, that in the event of such partial destruction, Landlord or Tenant shall have the option (in lieu of any restoration obligation) to terminate this Lease, by notice to the other given within thirty (30) calendar days following such damage, if either (i) the cost of such restoration (whether or not compensated for by insurance) shall exceed the annual fixed rent then payable under Paragraph 4; or (ii) such damage reduced the gross rentable floor area of the Premises by fifty (50%) percent or more or, if such damage occurs during the last half of the term of this Lease, twenty-five (25%) percent or more or (iii) the cost of such restoration exceeds the amount of casualty insurance on the Premises maintained by Landlord; (iv) or the required restoration cannot be completed within 180 days of the damage, Tenant shall place personal property and install fixtures in the Premises at Tenants sole risk and expense. No insurance carried by Landlord will provide coverage of any kind for such personal property and fixtures.
If the Center shall be damaged by storm, fire, lightning, earthquake or other casualty, and such damage reduces by more than twenty-five (25%) percent the gross rentable floor area of the Center, Landlord shall have the option to terminate this Lease regardless of whether or not such casualty damages the Premises and whether or not the restoration of such damage would be compensated by insurance. Landlord shall notify Tenant in writing within thirty (30) days after the occurrence of any such casualty if Landlord intends to so terminate this Lease; any such termination shall be effective as of the date of such casualty. Provided, however, Tenants obligation to pay rent hereunder shall continue so long as Tenant is in possession of the Premises and the Premises is usable for the purposes for which it was leased in accordance with applicable law. In the event such damage, destruction, or appropriation by eminent domain does not give rise to insurance or award for the Tenant, then the Landlords rights herein to cancel would be subject to repayment by the Landlord of Tenants unamortized leasehold improvements.
EMINENT DOMAIN
If Any of the Premises shall be taken or appropriated by or conveyed to any public authority under the power of eminent domain, either party hereto shall have the right, at its option, within thirty (30) days after said taking, to terminate this Lease upon written notice. If any of the Premises is taken or conveyed, and neither party elects to terminate as herein provided, the Minimum Rent thereafter to be paid shall be equitably reduced. If any part of the Center other than the Premises shall be so taken, appropriated, or conveyed, Landlord shall within thirty (30) days of the taking, or conveyance, whichever occurs later, have the right at its option, to terminate this Lease upon written notice to Tenant. In the event of any
taking, appropriation or conveyance, whatsoever, Landlord shall be entitled to any and all awards and/or settlements which may be given, and Tenant shall have no claim against Landlord or the condemning authority for the value of any unexpired term of this Lease. In the event such damage, destruction, or appropriation by eminent domain does not give rise to insurance or award by the Tenant, then the Landlords rights herein to cancel would be subject to repayment by the Landlord of Tenants unamortized leasehold improvements.
PARKING & OTHER COMMON AREA
Landlord shall have the right, at any time and from time to time, to change the size, location, elevation or nature of the Common Areas, or any part thereof, including, without limitation, the right to locate thereon structures and buildings of any type, provided that Tenants rights hereunder shall not be materially adversely affected (including access and parking rights). All Common Areas shall be subject to the exclusive control and management of Landlord and Landlord shall have the right, at any time and from time to time, to establish, modify, amend and enforce reasonable rules and regulations with respect to the Common Areas and the use thereof. Tenant agrees to abide by and conform to such rules and regulations upon notice thereof; and to cause its concessionaires, invitees and licensees, and its and their employees and agents, so to abide and conform. Landlord shall have the right (i) to close, if necessary, all or any portion of the Common Areas to such extent as may, in the opinion of Landlords counsel, be reasonably necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, (ii) to close temporarily all or any portion of the Common Areas to discourage non-customer use, (iii) to use portions of the Common Areas while engaged in making additional improvements or repairs or alterations to the Center and (iv) to do and perform such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to the Common Areas, as in the use of good business judgment, Landlord shall determine to be appropriate for the Center.
MAINTENANCE . Landlord shall keep the Common Area in a neat, clean and orderly condition and shall repair any damage to the facilities thereof.
COMMON RIGHTS . Tenant shall have the nonexclusive right in common with Landlord, other present and future owners, other tenants, and their respective agents, employees, customers, licensees and subtenants, to use the Common Area during the entire Term of this Lease, or any extension thereof, provided, however, that Landlord shall maintain full control and authority over the Common Area at all times.
RULES AND REGULATIONS . Tenant, in the use of the Common Area, agrees to comply with such reasonable rules, regulations and charges as are set forth in Exhibit B , and as Landlord may reasonably adopt from time to time for orderly and proper operation of said common area.
SIGNS
Tenant may affix and maintain upon the Premises only those signs which meet the attached sign criteria ( Exhibit C ), or otherwise approved by Landlord.
LANDLORDS LIABILITY
Tenant specifically agrees to look solely to Landlords equity or leasehold interest in the Center for recovery of any liability from Landlord. In no event shall Landlord ever be liable to Tenant for any indirect or consequential damages by reason of Landlords breach of the terms of this Lease.
FINANCIAL STATEMENTS
Upon 10 days prior written notice from Landlord, Tenant shall provide Landlord or Lender which is negotiating with Landlord for interim, construction or permanent financing, with confidential current financial statements provided Landlord shall cause any confidentiality agreements or other documentation reasonably requested by Tenant to be executed. The provisions of this Article 26 shall likewise apply for the benefit of any potential equity participant, purchaser, or joint venturer with respect to ownership of the Center.
TENANTS RIGHT TO TERMINATE
Provided, Tenant is not then in default hereunder, Tenant may terminate this Lease upon ninety (90) days prior written notice to Landlord. In the event of such termination, Landlord shall be entitled to retain the Deposit, and Tenant shall pay to Landlord all Minimum Rent and Adjustments due hereunder through the date of termination of the Lease.
MISCELLANEOUS
PLATS AND RIDERS . Clauses, Exhibits, plats, riders and addenda, if any, affixed to this Lease are a part hereof and incorporated herein by this reference.
WAIVER . The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition with respect to any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted regardless of Landlords knowledge of such preceding default at the time of the acceptance of such rent.
MARGINAL HEADINGS . The marginal headings and titles to the Sections and Articles of this Lease are not a part of the Lease and shall have no effect upon the construction or interpretation of any part hereof.
TIME . Time is of the essence of this Lease and of the performance of each and all of its provisions in which performance is a factor.
BINDING EFFECT . The covenants and conditions herein contained, subject to the provision as to assignment and subletting, shall apply to and bind the heirs, successors, executors, administrators, sublessees, licensees, concessionaires, and assigns of the parties hereto.
RECORDATION . Neither Landlord nor Tenant shall record this Lease, but a short form memorandum hereof may be recorded at the request and expense of the party requesting the same.
QUIET POSSESSION . Upon Tenants paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenants part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for fire Term, subject to all the provisions of this Lease use and enjoyment.
LATE CHARGES . If any installment of rent of any sum due from Tenant shall not be received by Landlord within seven (7) days from the date due, then Tenant shall pay to Landlord a late charge equal to fifty dollars ($50) per day until the amount due is paid in full.
BROKERS COMMISSION . Each of the parties represents and warrants to the other that there are no claims for brokerage commissions or finders fees in connection with the execution of this Lease.
PRIOR AGREEMENT . This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or altered except by an agreement in writing signed by the parties hereto or their respective successors in interest.
PARTIAL INVALIDITY . Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair or invalidate any other provision hereof and all other provision shall remain in full force and effect.
CUMULATIVE REMEDIES . No remedy or election of Landlord hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
CHOICE OF LAW AND VENUE . This Lease shall be governed by the laws of the State of Tennessee. The parties hereby agree that the only proper and convenient venue and/or jurisdiction for any litigation between them related to this Lease or the relationship of the parties as evidenced by this Lease shall be in the Circuit or Chancery Courts of Williamson County, Tennessee, or the United States District Court for the Middle District of Tennessee.
ATTORNEYS FEES . Should it be necessary for Landlord or Tenant to employ legal counsel to enforce any of the provisions herein contained, Landlord and Tenant agree the party against whom judgement is rendered shall pay all attorneys fees and collection costs reasonably incurred, including costs of appeal, court costs, and court reporters fees.
SALE OF PREMISES BY LANDLORD . In the event of any sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale provided that the purchaser expressly assumes in writing all obligations of Landlord hereunder.
SUBORDINATION AND ATTORNMENT . Tenant agrees to subordinate its rights hereunder to the lien of any mortgage, deed of trust, or other security instrument, in favor of any lender, now or hereafter in force against the Premises, and to all advances made or hereafter to be made upon the security thereof. In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage, deed of trust, or other security instrument covering the Premises, Tenant shall attorn to the purchaser upon any such foreclosure or sale, and recognize such purchaser and the Landlord under this Lease, provided that Landlord obtains from its mortgagee a non-disturbance agreement for the benefit of Tenant in a form reasonably acceptable to Tenant.
NOTICES . All notices and demands given under this Lease shall be in writing, and shall be sent by certified mail, return receipt requested, postage prepaid, or delivered in person,
To Landlord At: |
900 Briarwood Crest |
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Nashville TN 37221 |
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To Tenant At: |
722 Columbia Ave. |
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Franklin TN 37064 |
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All such notices shall be deemed given when deposited with the United States Postal Service as hereinabove provided, or delivered, in the case of a delivered notice. Either party may change the designated address by written notice to the other party.
TENANTS STATEMENT . Tenant shall at any time and from time to time, upon not less than five (5) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord such written estoppel certificates as may be reasonably and customarily required by any prospective purchaser, lender, or venturer of all or any portion of the Center.
AUTHORITY OF TENANT . If Tenant is other than an individual, each individual executing this Lease represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of Tenant, and that his Lease is binding upon Tenant.
EXHIBITS . The following Exhibits and Riders are attached to this Lease after the signatures and are incorporated herein by reference.
EXHIBIT A Location and Dimensions of Premises
EXHIBIT B Rules and Regulations
EXHIBIT C Sign Criteria and Specifications
EXHIBIT D Option to Extend
NUMBER AND GENDER . Whenever the context of this Lease so requires, the use of the plural shall include the singular, the masculine, the feminine, and vice versa.
TAX ON RENTS . If any governmental authority imposes any sales and use tax, or similar tax, upon the rents and other charges required hereunder, other than regular income taxes owed by Landlord, Tenant shall be responsible for paying said additional taxes in a timely manner.
PAYMENTS PRIOR TO BANKRUPTCY . If any bankruptcy or reorganization proceedings are commenced by or against Tenant, all payments made under this Lease shall be applied to the most recent obligations of Tenant hereunder, rather than to the oldest obligations of Tenant hereunder, regardless of any contrary intention of Tenant.
IN WITNESS WHEREOF , the parties hereto have caused this Lease to be executed as of the date first above written.
TENANT: | LANDLORD: |
[ | Franklin Synergy Bank | ] |
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Kevin Herrington |
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5/21/12 |
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5/22/12 |
EXHIBIT A
LOCATION AND APPROXIMATE DIMENSIONS OF PREMISES
EXHIBIT B
RULES AND REGULATIONS
TENANT AGREES AS FOLLOWS:
1. | Landlord may amend or add new Rules and Regulations for the use and care of the Premises, the Building, and the Center, at any time in the future as Landlord reasonably deems is in the best interest of the Center. |
3. | Garbage and refuse shall be kept in the kind of container specified by Landlord and shall be placed at the location outside the Premises designated by Landlord, for collection at the times specified by Landlord. Tenant shall pay the cost of removal of garbage and refuse. Lessee shall store soiled or dirty linen only in approved fire rating organization containers. |
4. | No radio, television, phonograph or other similar devices, or antenna attached thereto (inside or outside) shall be installed without first obtaining in each instance Landlords consent in writing, and if such consent be given, no such device shall be used in a manner so as to be heard or seen outside of the Premises. Landlord may withdraw any such consent at any time and in such event Tenant shall remove any such installation within ten (10) days after notice. Network Wireless antenna allowed. |
5. | At all times, Tenant shall keep the Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. |
6. | The outside areas immediately adjoining the Premises shall be kept clean and free from snow, ice, dirt and rubbish by Tenant, and Tenant shall not place, suffer or permit any obstructions or merchandise in such areas. |
7. | Tenant shall not use the Common Areas of the Center for business purposes. |
9. | Plumbing facilities shall not be used for any purposes other than that for which they are constructed, and no foreign substance of any kind shall be placed therein. |
10. | Tenant shall use, at Tenants cost, a pest extermination contractor at such reasonable intervals as Landlord may require. |
11. | Tenant shall not burn trash or garbage in or about the Premises, the Center, or within one (1) mile of the outside boundary of the Center. |
12. | Tenant shall not place, suffer or permit displays, decorations or shopping carts on the sidewalk in front of the Premises or on or upon any other part of the Common Area of the Center. |
13. | Tenant agrees at all times to maintain the heating and air-conditioning equipment in the Premises, to furnish Landlord with a copy of Tenants maintenance policy or program, and to at all times maintain temperatures in the Premises consistent with good business practice for the benefit of customers and employees. |
14. | Tenant agrees not to distribute any handbills or other advertising matter on or about any part of the Center. |
15. | No voluntary or involuntary auction, fire, bankruptcy and/or going-out-of-business sale shall be conducted in, at, or about the Premises, or any portion thereof, without the approval of Landlord. |
16. | Tenant shall not allow any smoke, fumes, or noxious odors to emanate from the Premises. |
17. | Tenant further agrees not to install any exterior lighting, amplifiers, or similar devices for use in or about the Premises or to utilize any advertising medium which may be heard or seen outside the Premises, such as flashing lights, searchlights, loudspeakers, phonographs or radio broadcasts. |
18. | Tenant agrees to keep about the Premises, that number and kind of fire extinguisher which is recommended or required by either insurance companies or governmental bodies, and to service and/or replace same as the manufacturer recommends. |
19. | Tenant agrees to place no vending machines or kiosks on the sidewalks outside the Premises. |
EXHIBIT C
SIGN CRITERIA
1. | The location, character, design, color and layout of all exterior signs shall be approved by Landlord, which approval may be withheld in Landlords sole discretion. Proper consideration, however, shall be given to the style, design and character of signs used by occupant(s) for the same or similar retail operations elsewhere. |
2. | Tenant agrees to pay all costs for the fabrication and installation of all exterior signage in accordance with Paragraph (1) above. All signs shall be fabricated and installed in compliance with all applicable building and electrical codes and bear a U.L. label. The name and/or stamp of the sign contractor or sign company or both shall not be exposed to view. |
3. | Any and all approved signs placed on the Premises by Tenant shall be maintained in compliance with all governmental ordinances, rules and regulations governing such signs, and Tenant shall be responsible to Landlord for any damage caused by installation, use or maintenance of said signs or violation or ordinance, rule or regulations with regard thereto. Upon any removal of said sign, Tenant shall simultaneously repair all damage incidental to such removal. All such signs shall be so removed prior to the expiration or termination of this Lease. |
4. | The following type signs are prohibited: |
(a) | Paper, cardboard or hanging signs and /or stickers utilized as signs, whether affixed or hung from windows, door, facia or canopy, except for government required window stickers. |
(b) | Signs of a temporary character or purpose, irrespective of the composition of the sign or material use therefore, except signage professionally and tastefully prepared. |
(c) | Portable trailer signs; |
(d) | Moving signs: and |
(e) | Temporary sign: exception being that Tenant will place a Coming Soon type of sign interiorly facing outwardly within one week after lease execution. |
EXHIBIT D
CONDITION TO EXTEND
Provided Tenant is not in default at the time Tenant exercises Tenants option hereunder and at the commencement date of the Extension Term, Tenant may, at its option, extend the Term of this Lease for 2 periods of 1 years (Extension Term) by giving Landlord written notice of the exercise of this option to extend at any time prior to the one hundred eightieth (180th) day before the expiration date of the preceding Term. All of the terms, conditions, and obligations set forth in this Lease shall remain in full effect during the Extension Term. The Minimum Rent for the Extension Term is as follows:
If this Lease expires or is validly terminated at any time or, if Tenant fails to give the advance notice required hereunder. Tenants option to extend the Term shall be cancelled and of no force or effect.
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Exhibit 10.7
AMENDMENT NUMBER FOUR
WHEREAS, the parties listed herein known respectively as CHEROKEE EQUITIES CORPORATION as Landlord and BANCCOMPLIANCE GROUP, LLC., a Tennessee Limited Liability Company and Constance and David Edwards, personally as Tenant entered into a Lease Agreement dated October 17, 2005, for commercial real estate property (the Premises) located at Suite A 102 in Premier Professional Office Park, located at 256 Seaboard Lane, Franklin, Tennessee 37067, and
WHEREAS, the parties amended said Lease by Amendment Number One dated October 30, 2008, Amendment Number Two, dated May 1, 2010, Amendment Three Dated March 11, 2012, and
WHEREAS, the parties desire to renew said Lease by virtue of this Amendment Number Four, and have mutually agreed to the following terms
1. | Term: The Term of this renewal period shall be twelve months (12 months) commencing on the first day of May 2013, and ending on April 30, 2014. |
2. | Rental: The monthly rental for the renewal period shall be $2,300.00 from May, 2013 - April 2014 payable without demand or further notice on the first day of each month. |
3. Carpets will be cleaned along traffic areas and other areas accessible upon arrangement for a suitable date with Tenant.
All other terms and conditions of the original Lease and Amendments shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in duplicate on the date as noted below
LANDLORD. Cherokee Equities Corporation | TENANT: BancCompliance Group, Inc. | |||||||
By: | The Stanton Group, Inc. Agent | Constance E. Edwards, President | ||||||
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Debra C. Viol, President and Agent for Cherokee Equities Corporation |
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Constance E. Edwards | ||||||||
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6/19/13 |
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June 7, 2013 |
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Exhibit 10.8
AMENDMENT NUMBER THREE
WHEREAS, the parties listed herein known respectively as CHEROKEE EQUITIES CORPORATION as Landlord and BANCCOMPLIANCE GROUP, LLC., a Tennessee Limited Liability Company and Constance and David Edwards, personally as Tenant entered into a Lease Agreement dated October 17, 2005, for commercial real estate property (the Premises) located at Suite A 102 in Premier Professional Office Park, located at 256 Seaboard Lane, Franklin, Tennessee 37067, and
WHEREAS, the parties amended said Lease by Amendment Number One dated October 30, 2008, and Amendment Number Two, dated May 1, 2010
WHEREAS, the parties desire to renew said Lease by virtue of this Amendment Number Three, and have mutually agreed to the following terms
1. | Term: The Term of this renewal period shall be one (1) year and six (6) months commencing on the first day of November, 2011 and ending on April 30, 2013. |
2. | Rental: The monthly rental for the renewal period shall be $2,300.00 payable without demand or further notice on the first day of each month. |
3. | Landlord will have the carpet cleaned |
All other terms and conditions of the original Lease and Amendment Number One, with exception of monthly rental, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in duplicate on the date as noted below
LANDLORD: Cherokee Equities Corporation | TENANT: BancCompliance Group, Inc. | |||||||
By: | The Stanton Group, Inc. Agent | |||||||
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Debra C. Viol, President and Agent for Cherokee Equities Corporation | Constance E. Edwards, President | |||||||
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5/2/12 |
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4/17/12 |
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Exhibit 10.9
AMENDMENT NUMBER TWO
WHEREAS, the parties listed herein known respectively as CHEROKEE EQUITIES CORPORATION as Landlord and BANCCOMPLIANCE GROUP, LLC., a Tennessee Limited Liability Company and Constance and David Edwards, personally as Tenant entered into a Lease Agreement dated October 17, 2005, for commercial real estate property (the Premises) located at Suite A 102 in Premier Professional Office Park, located at 256 Seaboard Lane, Franklin, Tennessee 37067, and
WHEREAS, the parties amended said Lease by Amendment Number One dated October 30, 2008, and
WHEREAS, the parties desire to renew said Lease by virtue of this Amendment Number Two, and have mutually agreed to the following terms
1. |
2. | Term: The Term of this renewal period shall be one (1) year and six (6) months commencing on the first day of May 2010 and ending on October 31, 2011. |
3. | Rental: The monthly rental for the renewal period shall be $2,297.00 payable without demand or further notice on the first day of each month. |
All other terms and conditions of the original Lease and Amendment Number One, with exception of monthly rental, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in duplicate on the date as noted below
Exhibit 10.10
FIRST AMENDMENT TO COMMERCIAL LEASE
WHEREAS, the parties listed herein known respectively as CHEROKEE EQUITIES CORPORATION as Landlord and BANCCOMPLIANCE GROUP, LLC, a Tennessee Limited Liability Company, and Constance and David Edwards, personally, as Tenant, entered into a certain Lease agreement dated October 17, 2005, for commercial real estate property (the Premises) located at Suite A-102 in Premier Professional Office Park, located at 256 Seaboard Lane, Franklin, Tennessee 37067, and
WHEREAS, the parties desire to renew said Lease, by virtue of this Amendment Number One; and have mutually agreed to the following terms:
1. Term: The Term of this Renewal Period shall be one (1) year and six (6) months commencing on the first day of November, 2008, and ending on the thirtieth day of April, 2010.
2. Rental: The monthly rental for the renewal period shall be Twenty-two Hundred, Fifty Two dollars and Fifty cents ($2252.50) payable without demand or further notice on the first day of each month.
3. Early Termination: There shall be no right of Early Termination.
4. BancCompliance Group, Incorporated, is a wholly owned subsidiary of Franklin Financial Network, Inc. Letter of Acknowledgement is hereby attached.
All other terms, provisions and covenants of the original lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment in duplicate on the date as noted below.
Landlord: Cherokee Equities Corporation |
Tenant: BancCompliance Group Inc. Connie Edwards, President |
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October 24, 2008 |
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Exhibit 10.11
LEASE AGREEMENT
THIS LEASE is made and entered into as of the 17 th day of October 2005, by and between Cherokee Equity Corporation, a Tennessee Corporation (the Landlord ) and Banc Compliance Group LLC, a Tennessee Limited Liability Corporation and Constance Edwards and David Edwards, personally, (the Tenant ).
W I T N E S S E T H:
Subject to the terms and conditions of this Lease, Landlord leases to Tenant and Tenant hires from Landlord the Premises. In addition to all other rights which it has under this Lease, Landlord expressly reserves all rights relative to the Building that are not expressly and specifically granted to Tenant under this Lease. Landlord and Tenant covenant and agree:
1. DEFINITIONS AND CERTAIN BASIC PROVISIONS. The following list sets out certain defined terms and certain financial and other information pertaining to this Lease:
(A) | Premises: | Landlord hereby leases to Tenant certain premises containing approximately 1,500 square feet (the Premises) known as Suite A-102 Premier Business Park located at 256 Seaboard Lane Franklin, Williamson County, Tennessee 37067 (the Building), as described on Exhibit A attached to this Lease. With regard to Exhibit A, the parties agree that the exhibits are attached solely for the purpose of locating the Premises within the Building and that no representation, warranty, or covenant is to be implied by any other information shown on such exhibits (i.e., any information as to buildings, parking, tenants or prospective tenants, etc. is subject to change at any time). | ||
(B) | Pro Rata Share: | Tenants Pro Rata Share is stipulated to be 33 1/3%. | ||
(C) | Commencement Date: | November 1, 2005 subject to extension pursuant to Section 32 and contingent upon the completion of items listed in Section 6 entitled Condition of Premises . If Landlord, for any reason whatsoever, cannot deliver possession of the Premises to Tenant, Landlord shall not be liable to Tenant for any loss or damage resulting therefrom. Once the Commencement Date has been determined, Landlord and Tenant agree to execute an amendment to this Lease setting forth the actual Commencement Date. | ||
(D) | Term: | Commencing on the Commencement Date and continuing for three (3) years (36 months). Provided Tenant is not then in default, Tenant shall have the option to renew this Lease for one additional period of three (3) years, upon written notice to Landlord at least 90 days prior to the expiration of the initial Term. See Termination Option, Paragraph 41. | ||
(E) | Base Rent: |
Tenant hereby agrees to pay to Landlord without deduction, set-off, prior notice or demand in lawful (legal tender for public or private debts) money of the United States of America, in advance, the sum of $2,062.50 per month ($16.50 per square foot per annum for the Premises) for the first twelve months of this Lease. Commencing with the 13 th month the monthly rental shall be $2,125.00 per month ($17.00 per square foot). Commencing with the 25th month, the monthly base rental shall be $2,187.50 ($17.50 per square foot). Base Rental for each year of any option period shall be increased by 3% per annum.
(1) Tenant shall pay as additional rent 100% of any increase in real estate taxes or any special assessments imposed by reason of improvements made to the Leased Premises by or for the benefit of Tenant after the date of Tenants occupancy and over the real estate taxes assessed in 2005. Payment under this clause shall be due within thirty (30) days of delivery of notice thereof to Tenant. |
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(2) Tenant shall also pay as additional rent 100% of any increase in Landlords insurance premium including, but not limited to, property and liability coverage for the building in which the Leased Premises are located above the premium in effect as of the date of this Lease if said increase is attributable to Tenants use or occupancy of the Leased Premises. Payment under this clause shall be due within thirty (30) days of delivery of notice thereof to Tenant. Tenant shall also pay its pro rata share of any increase in Landlords insurance premium over and above that in effect as of the Commencement of this Lease.
(3) Tenant shall pay as Additional Rent its Pro Rata Share of any increase in the Operating Expenses for the Buildings Common Areas (the Operating Expense Charge) over Base Year 2005. Operating Expenses shall mean ail costs and expenses (excluding capital expenses) assessed upon the Premises by the Owners Association attributable to the operation of the Buildings Common Area and related facilities, including but not be limited to the cost of the usual trash removal, landscaping and outdoor contract services, utility expenses for the common areas, inspection fees, repairs, maintenance and replacements of the improvements, management fees and expenses required under any governmental law or regulation and water and sewer services to the Premises.
(4) Tenant shall be solely responsible for and promptly pay all charges for heat, electricity, power and any other utility used upon or furnished to the Premises. Utility deposits shall be the sole responsibility of the Tenant. If Landlord shall elect to supply any of the foregoing utilities used upon or furnished to the Premises, Tenant agrees to purchase and pay for same as additional rent, within ten (10) days of the presentation by Landlord to Tenant of bills, therefore, at the applicable rates fifed by the utility company serving the area with the proper regulatory authority and in effect from time to time covering such services. The obligation of the Tenant to pay for such utilities shall commence as of the date on which the possession of the premises is delivered to Tenant. Landlord shall not be responsible for any interruption of utility services to the Premises. |
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(G) | Prepaid Rent: | $2,062.50 being the first months Base Rent for the Premises, such prepaid rental due and payable prior to Tenants occupancy of the Premises. | ||
(H) | Security Deposit: | $2,060.00 such security deposit being due and payable upon execution of this Lease, made payable to Cherokee Equity Corporation. | ||
(I) | Permitted Use: | General Office | ||
(J) | Condominium: | Tenant acknowledges that the Building in which the Premises are located is part of the Premier Business Park Condominiums and the Premises are governed by the Master Deed and By-Laws of the Premier Business Park Project. The Premises are located within the Project as shown on Exhibit C attached hereto. |
2. RENTAL PROVISIONS.
(A) | Landlords failure during the term of this Lease to prepare and deliver any of the tax bills, statements, notices or bills referred to in the above mentioned articles, or Landlords failure to demand payment of Additional Rent provided for hereunder, shall not in any way cause Landlord to forfeit or surrender its right to collect any Additional Rent which may have become due during the term of this Lease. However, if Landlord fails to notify Tenant within ninety (90) days after the expiration of this Lease or any extended term, no such Additional Rent shall be due. |
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(B) | As used herein, the term rent or Rent shall mean all sums payable by Tenant to Landlord hereunder. All sums payable hereunder shall be net to the Landlord. Tenant shall reimburse Landlord for the full amount of any sales, use or other tax charge (excepting income tax) that may be payable by or chargeable to Landlord upon or with respect to the rent paid by Tenant or received by Landlord hereunder; so that the rent payable by Tenant shall be received by Landlord net of any taxes other than Landlords income tax. At the end of any period for which such tax may be levied, Landlord shall notify Tenant in writing of the amount of such tax to be reimbursed by Tenant; and Tenant shall pay such amount to Landlord within thirty (30) days after receipt of such written notice. |
(C) | All Rent shall be payable at the office of Landlords agent, The Stanton Group, Inc., P.O. Box 993, Brentwood, Tennessee 37024, or such other place as Landlord may direct in writing. Checks, specifically including those for rental, shall be made payable to Cherokee Equity Corporation. Rental for a portion of a month, if any, (at the beginning and end of the term hereof) shall be prorated. |
(D) | Other remedies for non-payment of rent set forth herein notwithstanding, should Landlord choose to accept a late payment of rent, a service charge of ten (10%) of the rent owed shall become due and payable in addition to the regular rent owed under this Lease if the monthly rent payment is not received by Landlord before the tenth (10th) day of the month for which said rent is due. A check returned for any reason shall be considered non-payment of rent and the late charge shall apply. |
3. MEASUREMENT OF PREMISES . The measurement of the Premises shall be governed by the provisions of this paragraph. Premier Business Park (the Project) contains 49,500 square feet. The Building contains 4,500 square feet. The Premises contain 1,500 square feet Tenants prorata share of the Building is 33 1/3%.
4. SECURITY DEPOSIT.
(A) Tenant has deposited with Landlord the sum of $2,060.00 as security for the faithful performance and observance by Tenant of the terms, provisions, and conditions of this Lease. It is agreed that in the event Tenant defaults in respect of any of the terms, provisions, and conditions of this Lease, including, but not limited to, the payment of rent, Landlord may use, apply or retain the whole or any part of the security so deposited to the extent required for the payment of any rent as to which Tenant is in default or for any sum that Landlord may expend or may be required to expend by reason of Tenants default in respect of any of the terms, covenants, and conditions of this Lease.
(B) In the event that Tenant shall fully and faithfully comply with all of the terms, provisions, covenants, and conditions of this Lease, the security deposit shall be returned without interest to Tenant within thirty (30) days after the termination of this Lease and delivery of entire possession of the Premises to Landlord in the condition required hereunder.
(C) In the event of the sale or lease of the Building, Landlord shall have the right to transfer the security deposit to the vendee or tenant, Landlord shall thereupon be released from all liability for the return of the security deposit, and Tenant shall look solely to the new landlord for the return of the security deposit.
(D) Tenant further covenants that it will not assign or encumber or attempt to assign or encumber the monies deposited herein as security and that neither Landlord nor its successors or assigns shall be bound by any such assignment, encumbrance, attempted assignment, or attempted encumbrance.
5. USE OF PREMISES.
(A) The Premises shall be used for general office, (the Permitted Use) and no other. The Premises shall not be used for any purpose that in Landlords sole opinion will (i) violate this Lease or the Permitted Use: (ii) violate any exclusive use granted any other tenant or any restrictive covenant applicable to the Building; (iii) violate any rules or regulations promulgated by Landlord or the Owners Association; (iv) involve any illegal activity; or (v) violate any applicable governmental requirement; (vi) create any nuisance of trespass or disturb an other tenant; (vii) vitiate the insurance or increase the rate of insurance on the Building; or (viii) pose a danger to persons or property. Tenant will not in any manner deface or injure the Building or overload the floors or air conditioning systems serving the Building.
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(B) Tenant, at Tenant expense, shall comply with all laws, rules, orders, ordinances, directions, regulations, and requirements of federal, state county and municipal authorities, now in force or which may hereafter be in force, which shall impose and duty upon Landlord or Tenant with respect to the use, occupation or alteration of the Premises, including, but not limited to The Americans with Disabilities Act (the ADA).
6. CONDITION OF PREMISES. Tenant shall accept the Premises in such condition and repair as they are in at the Commencement Date, which acceptance shall be conclusive evidence of the good and satisfactory condition of the Premises at such time, and shall on the termination of this Lease surrender the Premises in the same condition and repair as when delivered, ordinary wear and tear excepted, and except for those Improvements such as may be provided for in this Lease.
a. | Landlord shall repair and paint interior office walls prior to occupancy. |
b. | Carpets shall be cleaned. |
7. ALTERATIONS AND IMPROVEMENTS.
(A) No alterations, additions, or improvements to the Premises, except such as may be provided for in this Lease, shall be made without first having the consent, in writing, of the Landlord. The design of all work and installments undertaken by Tenant shall be subject to the approval of Landlord, and no work shall commence until such approval is obtained. Landlords approval of the plans, specifications or working drawings for Tenants alterations shall create no responsibility or liability on the part of Landlord for their completeness, design sufficiency, or compliance with any applicable governmental laws, rules or regulations. Tenant shall complete alterations, additions, or improvements to the Premises strictly in compliance with the ADA and applicable code.
(B) At the expiration or sooner termination of this Lease, any improvements, additions, alterations and fixtures installed by Tenant, other than Tenants trade fixtures, unless otherwise agreed in writing, either (i) remain on the Premises as the property of the Landlord without compensation to Tenant; or (ii) be removed and the Premises restored to their original condition at Tenants cost. It is specifically understood and agreed that Landlord may require Tenant to remove any low voltage wiring serving the Premises, and any other improvements of installations by Tenant that Landlord deems to increase the cost of remodeling the Premises for use by future tenants. Tenant shall, at its cost, repair any damage caused by the removal of trade fixtures and other required items. Tenant shall save Landlord harmless on account of claims for mechanics, materialmens or other liens in connection with any alterations, additions or improvements to the Premises, and Tenant will, if required by Landlord, furnish a lien waiver for a bond in form and with surety satisfactory to Landlord, as Landlord may require before starting any work on the Premises. Further, Tenant agrees to hold Landlord harmless from liability in the event Tenant fails to comply with the requirements of the ADA in performing any work in the Premises.
(C) Tenant agrees that Tenant will pay all liens of contractors, subcontractors, mechanics, laborers, materialmen, and other items of like character, and will indemnify Landlord against all expenses, costs and charges, including bond premiums for release of liens and attorneys fees and costs reasonably incurred in and about the defense of any suit in discharging the Premises or any part thereof from any lien, judgments, or encumbrances caused or suffered by Tenant, in the event any such lien shall be made or filed, Tenant shall bond against or discharge the same within ten (10) days after the same has been made or filed. In the event Tenant fails to have such lien removed as required hereunder, Landlord shall have the right to pay such lien and Tenant shall reimburse Landlord for such sum, plus an administrative fee of fifteen percent (15%) upon demand. It is understood and agreed between the parties hereto that the expenses, cost and charges above referred to shall be considered as rent due and shall be included in any lien for rent.
(D) Tenant shall not have any authority to create any liens for labor or material on the Landlords interest in the Premises and all persons contracting with the Tenant for the destruction or removal of any facilities or to the improvements or for the erection, installation, alteration, or repair of any facilities or other improvements on or about the Premises, and all material men, contractors, subcontractors, mechanics, and laborers are hereby charged with notice that they must look only to the Tenant and the Tenants interests in the Premises to secure the payment of any bill for work done or material finished at the request or instruction of Tenant.
(E) Except as otherwise provided in this Lease as shown on the Floorplan attached hereto as Exhibit A, all installations and improvements now or hereafter placed on the Premises other than Building Standard Improvements shall be for Tenants account and at Tenants cost (and Tenant shall pay ad valorem taxes and increased insurance thereon or attributable thereto), which cost shall be payable by Tenant to Landlord upon demand as Additional Rent.
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8. REPAIRS .
(A) The Owners Association of the Building of which Landlord is a member, shall keep and maintain the common areas, grounds, and parking lots in good order and repair, the foundation, exterior walls, and roof the building in which the Premises are located and the structural portions of the Premises, exclusive of doors, door frames, windows and window frames. Landlord shall not be called upon to make repairs occasioned by the acts or negligence of Tenant, its agents, employees, invitees, licensees or contractors, except to the extent that Landlord is reimbursed therefore under any policy of insurance permitting waiver of subrogation in advance of loss. Landlord shall not be called upon to make any other improvements of repairs of any kind upon the Premises and appurtenance, except as may be required hereunder.
(B) Tenant shall keep and maintain in good order, condition and repair (including replacement of parts and equipment, if necessary) the Premises and every part thereof and any and all appurtenances thereto wherever located, including without limitation, the exterior and interior portion of all doors, windows, plate glass, storefront, all plumbing and sewage facilities within the Premises, including free flow up to the main sewer line and water lines up to and including the water meter serving the Premises to the point of connection at a shutoff valve, all fixtures, heating, air conditioning and electrical systems which service the Premises, and ail doors, walls, floors and ceiling. Tenant shall repair all improvements, additions and fixtures installed by Tenant and any damage caused by Tenants acts or omissions.
(C) Tenant shall at once report in writing to Landlord any known defective condition on the Premises that Landlord is required to repair, and failure to so report shall make Tenant responsible for all property damage and personal injury resulting from such defective condition that could have been avoided if the same had been promptly reported by Tenant.
9. RULES AND REGULATIONS. Tenant, its agents, employees, contractors and invitees shall observe, perform and abide by the Rules and Regulations attached hereto as Exhibit C, together with such other and rules and regulations that Landlord or Premier Business Park Owners Association may from time to time adopt, upon delivery of a copy thereof to Tenant. Tenant shall also abide by the terms and conditions applicable to its use and occupancy of the Premises as set forth in the Master Deed and By-Laws for Premier Business Park Condominiums attached hereto as Exhibit D.
10. INDEMNITY AND INSURANCE.
(A) Landlord shall not be held responsible for and are hereby expressly relieved from all liability by reason of any injury, loss or damage to any person or property in or about the Building, however caused, including but not limited go vandalism, water, snow, frost, steam, sewage, illuminating gas sewer, or odors or by the bursting or leaking of pipes or plumbing, and shall apply equally whether such damage be caused by the act or neglect of other tenants or occupants of the Building, any contractors performing work in the Building or any other persons. All Tenants personal property shall be at the risk of the Tenant only and Landlord shall not be liable for any damage thereto or theft thereof. Landlord shall not be liable for any act, neglect or delay not authorized by Landlord or Landlords employees or contractors and any such act, neglect or delay of such employees or contractors shall not be construed or considered as an actual or constructive eviction of the Tenant nor shall it in any way operate to release the Tenant from the punctual performance of each and all of the other covenants herein contained by the Tenant to be performed.
(B) Tenant shall indemnify Landlord and save Landlord harmless from any and all claims, actions, damages, liabilities and expenses, including counsel fees and court costs, in connection with personal injuries or damage to property arising from its occupancy of the Premises or occasioned in whole or in part by any act or omission of Tenant, its agents, contractors, employees, customers, licensees, guests, or any other person.
(C) Tenant shall provide commercial general liability insurance, or its equivalent, with limits of at least Two Million and No/100 Dollars ($2,000,000.00) per occurrence and general aggregate for bodily injury or property damage, as well as six (6) months business interruption insurance. Tenant also shall carry contents coverage on its property at full replacement cost. All policies shall name Landlord and Landlords Agent as additional insureds, with a certificate thereof to be furnished to Landlord and Landlords Agent containing a provision that the policies may not be canceled or changed without giving to the Landlord and Landlords Agent at least (30) days written notice prior to any such change or expiration or cancellation of any policy.
(D) Anything in this Lease to the contrary notwithstanding, Landlord and Tenant each hereby waives any and all rights of recovery, claim, action or cause of action against the other for any loss or damage that may occur to the Premises or any improvements thereto, the Building or any personal property of Landlord or Tenant, arising from any cause that (i) would be insured against under the terms of any insurance required to be carried hereunder; or (ii) is insured against under the terms of any insurance actually carried, regardless of whether the same is required hereunder. The foregoing waiver shall apply
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regardless of the cause or origin of such claim, including but not limited to the negligence of a party, or such partys agents, officers, employees or contractors. The foregoing waiver shall not apply if it would have the effect, but only to the extent of such effect, of invalidating any insurance coverage of Landlord or Tenant. Each party shall obtain any special endorsements, if any, required by their respective insurers to evidence compliance with the aforementioned waiver.
11. DAMAGE BY FIRE OR OTHER CASUALTY.
(A) If the Premises or other portions of the Building should be damaged by fire or other casualty so as to render the Premises wholly or partially unsuitable for occupancy, Landlord shall repair and restore the same as promptly as is reasonably possible; provided, however, that if Landlord shall determine that repair cannot be completed within one hundred eighty (180) days from the date of such damage, Landlord shall so notify Tenant, and either Landlord or Tenant may, within fifteen (15) days thereafter, terminate the Lease by notifying the other party in writing of its election so do.
(B) Notwithstanding the foregoing, Landlord shall not have any obligation whatsoever to repair, reconstruct or restore the Premises when thirty percent (30%) or more of the Building is damaged, or the insurance available to Landlord is not sufficient to cover the cost of such repair, reconstruction or restoration. Further, should damage to the Premises occur during the last twelve (12) months of the Lease Term, either Landlord or Tenant shall have the option to terminate this Lease, effective on the date of casualty by written notice within thirty (30) days of the casualty. Notwithstanding the foregoing, should the casualty occur by reason of Tenants negligence, Tenant shall not have the option to terminate.
(C) If this Lease is not terminated, no rental shall be due during any period that the Premises are totally unfit for occupancy, Tenant is unable to conduct Tenants business or during which there is no access to the Premises by reason of such damage.
12. ASSIGNMENT AND SUBLETTING.
(A) Tenant covenants and agrees not to assign or sublet said Premises or any part of same or in any other manner transfer this Lease, the subleasehold or the Premises without the written consent of the Landlord, but such consent to sublease or assign shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant may assign this Lease or sublet the whole or any part of the Premises to any of its affiliates or subsidiaries (as defined in the Internal Revenue Code of 1986, as amended) during the term hereof, or any extension hereof without the consent of the Landlord, provided Tenant notifies Landlord in writing prior to any such assignment or subletting. In the event of any subletting or assignment of any or all of the Premises, Tenant nevertheless shall remain liable for the payment to the Landlord underand compliance with all of the terms and conditions of this Lease and shall pay to Landlord all amounts received by Tenant that exceed the rent payable hereunder. Any consent to a subletting or assignment shall not be deemed a consent to any subsequent subletting or assignment, and any attempted assignment or sublease without the required consent of Landlord shall be void. Prior to any subletting or assignment requiring Landlords consent, Tenant shall submit to Landlord the intended use and term and Landlord shall have fifteen (15) days in which to elect to terminate this Lease, in which event the parties shall be relieved of further responsibility to the other accruing after the effective termination date as hereinafter set forth. In the event that Landlord elects to terminate this Lease during the aforesaid fifteen (15) day period, such termination of the Landlords obligation shall be effective ninety (90) days from the date that the Landlord gives written notice of its election to terminate the Lease. All of Tenants obligations under this Lease shall be in full force and effect until the expiration of said ninety (90) day period.
(B) Any proposed assignee or Tenant or its business is subject to compliance with additional requirements of the law (including the ADA) beyond those requirements that are applicable to Tenant. Any proposed assignee or Tenant shall: (i) first deliver plans and specifications for complying with such additional requirements and obtain Landlords consent thereto; and (ii) comply with all Landlords requirements for security to assure the lien-free completion of any improvements as well as any other conditions prescribed by Landlord in any consent given hereunder.
(C) In no event shall any sublease or assignment be made which would in any way violate any then existing exclusive provision granted to any other tenant.
13. RIGHTS AND REMEDIES ARE CUMULATIVE. Rights and remedies herein given to and reserved by the Landlord are separate and cumulative rights and remedies and no one of them, whether or not exercised by the Landlord, shall be deemed to be in exclusion of any of the others, or in the exclusion of any rights or remedies in law or equity under the law of the state in which the property herein Premises is located.
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14. EVENTS OF DEFAULT. This Lease is made upon the condition that Tenant shall punctually and faithfully perform all of the covenants, conditions and agreements by it to be performed as in this Lease set forth. The following shall each be deemed to be an event of default (each of which is sometimes referred to as an Event of Default in this Lease):
(A) the failure by the Tenant to pay the Rent or any other sums within ten (10) days after written notice that the same is past due;
(B) the failure of Tenant to observe or perform any of the other covenants, terms or conditions set forth in this Lease where said failure continues for a period of thirty (30) days after written notice thereof from Landlord to Tenant;
(C) the filing of a proceeding in bankruptcy or arrangement or reorganization with respect to Tenant or any guarantor of this Lease pursuant to the United States Bankruptcy Code or any similar law, federal or state, including but not limited to:
(i) Tenant or any guarantor of this Lease shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or any such guarantor, or shall make any general assignment for the benefit of creditors, or shall admit in writing its inability to pay or shall fail to pay its debts generally as they become due; or
(ii) A court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against Tenant or any such guarantor seeking any reorganization, dissolution or similar relief under any present or future federal, state, or other statute, law or regulation relating to bankruptcy, insolvency or other relief for debtors or Tenant or any such guarantor shall be the subject of an order for relief entered by such a court, and such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive) from the first date of entry thereof, or any trustee, receiver, custodian or liquidator of Tenant or any such guarantor shall be appointed without the consent or acquiescence of Tenant or any such guarantor and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days (whether or not consecutive);
(D) repetition or continuation of any failure to timely pay any Rent where such failure shall continue or be repeated for two (2) consecutive months, or for a total of four (4) months in any period of twelve (12) consecutive months;
(E) repetition of any failure to observe or perform any of the other covenants, terms or conditions hereof more than six (6) times, in the aggregate, in any period of twelve (12) consecutive months; and
(F) if Tenant abandons or vacates the Premises for more than thirty (30) days.
15 REMEDIES IN DEFAULT. If an Event of Default occurs, Landlord may:
(A) Terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord.
(B) Terminate Tenants right to possession of the Premises without terminating this Lease, in which event this Lease will continue in effect and Landlord shall have the right to collect Rent when due. Landlord may relet the Premises for the benefit of Tenant, and Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including without limitation, reasonable attorneys fees, brokers commissions, expenses of remodeling the Premises and like costs. Reletting can be for a period shorter or longer than the remaining Lease term. Tenant shall pay to Landlord the Rent under this Lease on the dates the same is due, less any Rent the Landlord receives from any reletting. Tenant shall have no right to any rent received by Landlord from such reletting in excess of the Rent hereunder. No act by Landlord with respect to the Premises shall terminate this Lease, including but not limited to acceptance of the keys, institution of an action for detainer or other dispossesses proceedings; it being understood that this Lease may only be terminated by express written notice from Landlord to Tenant, and any reletting of the Premises shall be presumed to be for and on behalf of Tenant, and not Landlord, unless Landlord expressly provides otherwise in writing to Tenant.
(C) In addition to Landlords rights of self-help set forth elsewhere in this Lease, if Tenant at any time fails to perform any of its obligations under this Lease in a manner reasonably satisfactory to Landlord, Landlord shall have the right,
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but not the obligation, to perform such obligations on behalf of and for the account of Tenant and to take all such action to perform such obligations. In such event, Landlords costs and expenses incurred therein shall be paid for by Tenant forthwith as Additional Rent, upon demand therefore.
(D) In any action to enforce its rights hereunder, Landlord shall be entitled to collect court costs, reasonable attorneys fees and all costs of collection, including but not limited to costs of depositions and expert witnesses.
(E) A termination of this Lease by Landlord or the recovery of possession of the Premises by Landlord or any voluntary or other surrender of this Lease by Tenant or a mutual cancellation thereof, shall not work a merger and shall at the option of Landlord, terminate all or any existing franchises or concessions, licenses, permits, Leases, subtenancies or the like between Tenant and any third party with respect to the Premises, or may, at the option of Landlord, operate as an assignment to Landlord of Tenants interest in same.
(F) The rights given to Landlord in this Section are cumulative and shall be in addition and supplemental to all other rights or remedies that Landlord may have under this Lease, under laws then in force or in equity.
(G) All demands for rent and all other demands, notices and entries, whether provided for under common law or otherwise, that are not expressly required by the terms hereof, are hereby waived by Tenant.
16 DAMAGES UPON TERMINATION.
(A) If Landlord elects to terminate this Lease under the provisions of the preceding Section, Landlord may recover from Tenant damages computed in accordance with the following formula in addition to Landlords other remedies:
(i) the worth at the time of judgment of any unpaid Rent which has been earned at the time of such termination; plus
(ii) the worth at the time of judgment of the amount by which the unpaid Rent which would have been earned after termination until the time of judgment exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus
(iii) the worth at the time of judgment of the amount by which the unpaid Rent for the balance of the Term after the time of judgment exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenants failure to perform its obligations under this Lease or which in the ordinary course of things would likely to result therefrom including but not limited to, the cost of recovering possession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys fees, and the unamortized portion of (a) real estate commissions paid by Landlord in connection with this Lease, (b) all costs incurred by Landlord to improve the Premises, and (c) any additional amount furnished in the nature of an allowance (all of such amortization to be based on the assumption that such costs and expenses are amortized on a straight line basis over the initial lease term); plus
(v) at Landlords election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable state law. Damages shall be due and payable from the date of termination.
(B) As used in subsections (A)(i) and (ii), the phrase worth at the time of judgment shall be computed by adding interest on all such sums from the date when originally due at the lesser of fourteen percent (14%) per annum or the maximum interest rate permissible by law (the Default Rate). As used in subsection (B)(iii), the phrase worth at the time of judgment is computed by discounting the sum in question at the federal reserve rate promulgated by the federal reserve office for the district in which the Building is located. For the purposes of this Section, Rent for each year of the unexpired Term shall be the Base Rent payable under this Lease, together with any other continuously accruing expenses payable hereunder.
17 ABANDONMENT. If Tenant shall fail to remove all effects from the Premises upon termination of this Lease for any cause whatsoever or when Landlord shall re-enter and re-let the Premises for account of Tenant, the same shall be deemed abandoned, and Landlord may at its option remove the same in any manner that the Landlord shall choose and store said effects without liability to Landlord for loss thereof, and Tenant agrees to pay Landlord on demand any and all expenses
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incurred in such removal, including court costs and attorneys fees and storage charges on such effects for any length of time, the same shall be in Landlords possession, or Landlord may at its option without notice sell said effects or any part of the same at private sale and without legal process of such price as Landlord may obtain and apply the proceeds of such sale upon any amounts due under this Lease from Tenant to Landlord and upon the expenses incident to removal and sale of said effects.
18 ACCESS AND COMMON AREAS. All driveways, parking areas or other means of access to and from the Premises, Building or Project, and any other common areas or spaces designated by Landlord as common or general use areas, or access areas, shall be reserved for the use of Landlord, all occupants and tenants in the Building or the Project and shall not be considered part of the Premises.
19 ESTOPPEL. In the event same is required by any lender or mortgagee of the Building, Tenant agrees that from time to time, upon not less than ten (10) days prior request by Landlord, Tenant will deliver to Landlord a statement in writing certifying (A) that this Lease is unmodified and in full force and effect (or, if there have been modifications, that the Lease as modified is in full force and effect and stating the modifications); (B) the dates to which the rent and other charges have been paid; and (C) that Landlord is not in default under any provisions of this Lease, or, if in default, the nature thereof in detail.
20 NON-WAIVER. The failure of the Landlord to insist in any one or more instance upon a strict performance of any of the covenants and conditions contained in this Lease or to exercise any option herein contained shall not be construed as a waiver for the future of any such covenant or condition or option, but the same shall continue and remain in full force and effect. The receipt by the Landlord of rent in whole or in part, or any other payment due hereunder, with knowledge of the breach of any such covenant or condition, shall not be deemed a waiver of such breach and no waiver by the Landlord of any provision hereof shall be deemed to have been made unless expressed in writing and signed by Landlord. Failure of Landlord to declare any default immediately upon occurrence thereof, or delay in taking any action in connection therewith, shall not waive such default, but Landlord shall have the right to declare any such default at any time and take such action as might be lawful or authorized hereunder, in law or in equity. No waiver by Landlord of a default by Tenant shall be implied, and no express waiver by Landlord shall effect any default other than the default specified in such waiver and then only for the time and extension therein stated.
21 ATTORNEYS FEES AND INTEREST. In the event it becomes necessary for Landlord to employ an attorney to enforce collection of the rents agreed to be paid, Tenant shall be liable for reasonable attorneys fees, costs and expenses incurred by Landlord. In the event it becomes necessary for Landlord or Tenant to employ an attorney to enforce compliance with any of the covenants and agreements, herein contained, the non-prevailing party shall be liable for reasonable attorneys fees, costs and expenses incurred by the prevailing party.
22 PEACEFUL POSSESSION. Landlord hereby covenants and agrees that at the time of the delivery of this Lease it had full right and power and authority to lease the same, and does hereby warrant to Tenant the quiet and peaceful possession of the Premises during the whole term of this Lease, so long as all terms and conditions herein are fully performed.
23 RIGHT OF ENTRY. Landlord and its agents may enter said Premises at reasonable times to inspect, make repairs or additions, and to show the Premises to prospective tenants, and to advertise the Premises for lease, provided Tenants occupancy shall not be interfered with. Said right of entry shall likewise exist for the purpose of removing placards, signs, fixtures, alterations, or additions that do not conform to this Lease.
24 UTILITIES AND SERVICES. Landlord shall not be liable for damages from the temporary stopping or breakdown of elevator service, heat, electric, air conditioning equipment or water apparatus, or any other facility or service.
25 HOLDING OVER. If Tenant remains in possession after expiration of the term hereof, either the original or any renewal term, without any distinct agreement between the parties, Tenant shall be a tenant at will, with such tenancy terminable by either party upon five (5) days notice, and there shall be no renewal of this Lease by operation of law. In the event Tenant shall become a holdover tenant, al! the provisions, terms and conditions of this Lease shall remain in effect during the full term of the holdover period. Tenant agrees that if Tenant does not surrender the Premises to Landlord upon termination of this Lease, then the Base Rent during such holdover period shall be one and one-half (150%) of the amount of the current Base Rent, and Tenant shall indemnify and save Landlord harmless from and against all claims, loss, liability and damages suffered by Landlord on account of such holdover. No receipt of money by Landlord from Tenant after termination of this Lease or the service if any notice of commencement of any suit or final judgment for possession shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand, suit or judgment.
Page 9 of 21 Pages
26 NOTICES. All notice herein provided shall be in writing and shall be deemed given when sent by certified mail, postage prepaid, return receipt requested, and deposited in the mail addressed to Tenant at the Premises and to Landlord at P.O. Box 993, Brentwood, Tennessee 37024-0993.
27. EMINENT DOMAIN. If such a portion of the Premises is taken under the power of eminent domain or appropriation by any public or quasi-public authority, or Landlord delivers a deed-in-lieu of such a taking (a Taking), with the result that the operation of Tenants business is no longer economically feasible, either party hereto shall have the right, at its option, to terminate this Lease as of the date of such Taking, upon notice within thirty (30) days following the date of said taking. If the Taking results in thirty percent (30%) or more of the Building other than the Premises being taken, or a sufficient portion of the Building other than the Premises being taken so that it is no longer, in Landlords sole discretion, an economically viable entity, Landlord shall have the option to terminate this Lease upon notice within thirty (30) days following the date of such Taking, effective as of the date of such notice. In all events, Landlord shall be entitled to the entire award that may be paid in connection with such Taking, and Tenant shall have no claim against Landlord for the value of the unexpired term of this Lease or any extension or renewal term. Tenant may make a separate claim against the taking authority for damages to Tenants fixtures and for moving expenses. In the event neither party terminates this Lease as herein provided, the rent and other sums payable hereunder based on square footage shall be proportionately reduced.
28. SIGNS. Landlord shall have the right to change the Buildings name or street address. Subject to (A) applicable code and the approval of the applicable governmental authorities; and (B) the approval of Landlord and Owners Association as to location, design and method of attachment, Tenant shall have the right to install signage. All such signage shall be installed and maintained at Tenants sole cost and expense. Upon the expiration of earlier termination of this Lease, Landlord shall have the right to require Tenant to remove such signage and repair any damage occasioned by such removal.
29. TIME OF ESSENCE. It is understood and agreed between the parties hereto that time is of the essence of all the terms, provisions, covenants and conditions of this Lease.
30. PARTIES INCLUDED. Whenever reference is made herein to the words, Landlord or Tenant, the same shall be construed to be both plural and singular and to include the respective heirs, distributees, executors, administrators, legal representatives, successors and assigns of the Landlord and Tenant.
31. GOVERNING LAW AND SEVERABILITY. This Lease shall be interpreted in accordance with the laws of the State of Tennessee. If any clause or provision hereof should be determined to be illegal, invalid or unenforceable under present or future laws effective during the term of this Lease or any renewal term hereof, then and in that event, it is the express intention of the parties hereto that the remainder of this Lease shall not be affected thereby, and it is also the express intention of the parties hereto that in lieu of each clause or provision of this Lease which may be determined to be illegal, invalid or unenforceable, there may be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable.
32. FORCE MAJEURE. Neither Landlord nor Tenant shall be required to perform any term, condition, or covenant in this Lease so long as such performance is delayed or prevented by force majeure, which shall mean acts of God, labor disputes (whether lawful or not), material or labor shortages, restrictions by any governmental authority, civil riots, floods, and any other cause not reasonably within the control of Landlord or Tenant and which by the exercise of due diligence Landlord or Tenant is unable, wholly or in part, to prevent or overcome. Lack of money shall not be deemed force majeure.
33. HAZARDOUS MATERIALS. Tenant shall not cause or permit the use, generation, storage or disposal in or about the Premises of any substances, materials or wastes subject to regulation under any federal, state or local law from time to time in effect concerning hazardous, toxic or radioactive materials (hereinafter Hazardous Materials) unless Tenant shall have received Landlords prior written consent, which consent Landlord may withhold or at any time revoke at its sole discretion. If Tenant uses, generates, stores or disposes of any Hazardous Materials in or about the Premises, Tenant shall obtain all necessary permits and comply with all statutes, regulations and rules applicable to such activity. Furthermore, Landlord shall have the right to require that Tenant deliver periodic environmental audits of the Premises evidencing that no violations have occurred. Tenant shall indemnify and hold Landlord harmless from and against all liability, cost, claim, penalty, expense and fees (including court costs and attorneys fees) arising from Tenants use, generation, storage, or disposal of Hazardous Materials in or about the Premises. This section shall survive the expiration or earlier termination of this Lease.
34. CREDIT REPORT . Tenant authorizes any consumer or business credit reporting agency to disclose to Landlord or Landlords Agent a consumer report including information as to Tenants and or its Guarantor(s) credit history, credit worthiness, credit standing, and capacity to perform when under the terms of this Lease. Tenant agrees to hold harmless the credit reporting agency, the Landlord and Landlords Agent from any liability or damages arising from the above investigation or disclosure.
Page 10 of 21 Pages
35. FINANCIAL STATEMENTS. Tenant covenants and agrees to provide financial statements to Landlords mortagee(s), if requested by any such lending institution. Such statements shall initially include profit and loss statements and balance sheets for the past two years. Such statements are required prior to entering into this agreement. For each period thereafter statements shall be provided for annual periods. Failure of Landlord to initially request said statements shall not constitute a waiver thereof.
36. LANDLORD LIABILITY. In no event shall Landlord be in default hereunder unless it has failed to cure such default within thirty (30) days after written notice (or if more than thirty (30) days shall be required because of the nature of the default, if Landlord shall fail to proceed diligently to cure such default after written notice). It is expressly understood and agreed that any money judgment resulting from any default or other claim arising under this Lease shall be satisfied only out of Landlords interest in the Building, and no other real, personal or mixed property of Landlord (the term Landlord for purposes of this section only shall mean any and all partners, both general and/or limited, officers, directors, shareholders, members and beneficiaries, if any, who comprise Landlord), wherever situated, shall be subject to levy on any judgment obtained against Landlord. Tenant hereby waives, the extent waivable under law, any right to satisfy a money judgment against Landlord except from Landlords interest in the Building. If such interest is not sufficient for the payment of such judgment, Tenant will not institute any further action, suit, claim or demand, in law or in equity, against Landlord for or on the account of such deficiency. Notwithstanding anything herein contained to the contrary, Tenant hereby waives, to the extent waivable under law, any right to specific performance in the event of Landlords default referred to herein, and Tenant expressly agrees that except as provided in the immediately following sentence, Tenants remedy shall be limited to the monetary damages referred to in this Section. Notwithstanding the foregoing, in the event of failure by Landlord to give any consent, as provided in this Lease, Tenants sole remedy shall be an action for specific performance at law, but in no event shall Landlord be responsible in monetary damages for failure to give such consent.
37. SALE OF BUILDING. In the event of any sale of the Building or the Premises, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring on or after the consummation of such sale, and the purchaser at such sale or any subsequent sale shall be deemed, without any further agreement between the parties or their successors in interest or between the parties and any such purchaser, to have assumed and agreed to carry out any and all of the covenants and obligations of the Landlord under this Lease.
38. BROKERS COMMISSION. It is agreed that THE STANTON GROUP, INC. is the real estate broker that negotiated and completed this Lease and is entitled to the commission under separate agreement with Landlord. Said commission is payable by the Landlord in accordance with the commission agreement as executed between Landlord and brokers. Tenant warrants that there are no other claims for brokers commissions or finders fees in connection with its execution of this Lease and agrees to indemnify and save Landlord harmless from any liability that may arise from such claim, including reasonable attorneys fees. Commissions due shall be payable on the amount of the Base Rental due under the terms of this Lease.
39. ENTIRE CONTRACT AND EXHIBITS. The submission of this document for examination and negotiation does not constitute an offer to lease, or a reservation of, or option for, the Premises. This document shall become effective and binding only upon execution and delivery hereof by Tenant and by Landlord (or, when duly authorized, by Landlords Agent). No act or omission of any agent of Landlord or of Landlords Agent or broker shall alter, change or modify any of the provisions hereof. This instrument constitutes the entire agreement between the parties and all prior negotiations shall be deemed incorporated herein. Landlord has made no promises, representations, warranties or covenants, except as expressly provided herein. This Lease shall not be altered, changed, or modified in any respect except by an instrument in writing signed by both parties. Addendums, exhibits, clauses and riders, if any, affixed to this Lease are a part hereof and incorporated herein by reference.
40. AUTHORIZATION. Each individual executing this Lease on behalf of the Tenant represents and warrants that such individual has been duly authorized by Tenant to do so. Tenant agrees to provide Landlord with ail documentation requested by Landlord in order to satisfy Landlord that Tenant is a duly organized entity, with the authority to enter into this Lease, and the financial ability to meet its obligations hereunder.
41. TERMINATION OPTION: Providing Tenant is not then in default. Landlord shall grant a one-time option to terminate this lease after the eighteenth (18 th ) month with a ninety (90) day advance written notice. In no event shall such termination occur before the twenty-first (21 st ) month of this Lease.
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42. GUARANTOR. The Landlord under the Lease requires as a condition to its execution of the Lease, that the undersigned guarantee the full performance of the obligations of the Tenant under the Lease. Tenant shall execute the Lease Guaranty of even date herewith, attached hereto as Exhibit E and by this reference made a part of this Lease.
IN WITNESSETH WHEREOF, the parties have executed or caused to be executed this Lease Agreement on the date first above written.
LANDLORD: Cherokee Equity Corporation | ||||||||||
By: |
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Date: | 10-20-05 | |||||||
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Name: | Debra C. Viol | Title: | Agent | |||||||
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TENANT: Banc Compliance Group LLC | ||||||||||
By: |
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Date: | 10/19/05 | |||||||
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Name: | Constance E. Edwards | Title: | Member | |||||||
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Exhibit A
Floorplan
Page 13 of 21 Pages
EXHIBIT B
RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS
RULE B1 . No sign, picture, advertisement, or notice shall be displayed, inscribed, painted or affixed on any part of the outside or inside of said building, or on or about the Premises hereby Premises, except of such color, size, style and materials as shall be approved by the Landlord in writing and subject to the provisions of Paragraph 29 of the Lease. No For Rent signs shall be displayed by the Tenant, and no showcases, or obstructions, signs, flagpoles, flags, barber poles, statuary, or any advertising device of any kind whatever shall be placed in front of said building or in the passageways, halls, lobbies, or corridors thereof by the Tenant; and the Landlord reserves the right to remove all such showcases, obstructions, signs, flags, barber poles, statuary or advertising devices and all signs other than those provided for, without notice to the Tenant and at Tenants expense.
RULE B 2 . No Tenant shall use or keep in the Premises or the building any oil, kerosene, gasoline or other flammable or combustible fluid or any other material or article extra hazardous, other than limited quantities thereof necessary for the operation or maintenance of office equipment. No Tenant shall, without Landlords prior written approval, use any method of heating or air conditioning other than that supplied by the Landlord. No Tenant shall use or keep or permit to be used or kept any foul or noxious gas in the Premises, or permit or suffer the Premises to be occupied or used in manner offensive or objectionable to Landlord or other Tenants or those having business in the Building. No Tenant shall put up or operate any steam engine, boiler or machinery on the Premises, or carry on any mechanical business therein. No commercial cooking or related activities shall be done or permitted by Tenant on the Premises.
RULE B 3 . No additional locks shall be placed upon any doors without the prior written consent of the Landlord. Initial keys shall be furnished by Landlord, and the same shall be surrendered upon termination of this Lease, and Tenant shall then give Landlord or his agent an explanation of the combination of all locks on the doors or vaults and return all keys to Landlord.
RULE B 4 . Safes, furniture, boxes or other bulky articles shall be carried up into the Premises only with written consent of the Landlord first obtained, and then only by means of the elevators, by the stairways, or through the windows of said Building as the Landlord may in writing direct, and at such times and in such manner and by such persons as the Landlord may direct. Safes and other heavy articles shall be placed by the Tenant in such places only as may be first specified in writing by the Landlord and any damage done to the Building or to Tenant or to other persons taking a safe or other heavy article in or out of the Premises, from overloading a floor, or in any other manner shall be paid for the Tenant.
RULE B 5 . If the Tenant desires computer or telephonic connections, or the installation of any other wiring, such wiring shall be done at tenants expense and by a subcontractor approved by Landlord only and no other wiring sub-contractors shall be allowed to do work of this kind unless by the written permission of Landlord.
RULE B 6 . The Tenant shall not allow anything to be placed against or near the glass in the partitions, between the Premises and the halls or corridors of the Building, which shall diminish the light in, or prove unsightly from the corridors or exterior.
RULE B 7 . The Tenant shall not allow anything to be placed on the outside window ledges of the Premises, nor shall anything be thrown by the Tenant or its employees, out of the windows of the Building.
RULE B 8 . The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags, or other substances shall be thrown therein. All damages resulting from any misuse of the fixtures shall be borne by the Tenant.
RULE B 9 . No operable bicycle or other vehicle, particularly any vehicle containing combustible fuel, and no animal (except for seeing eye dogs) shall be brought into the offices, halls, corridors, elevators, or any other parts of said Building, by the Tenant, its agents or employees.
Page 14 of 21 Pages
RULE B 10 . Sidewalks, doorways, vestibules, halls, stairways, and similar areas shall not be obstructed nor shall refuse, furniture, boxes or other items be placed therein by Tenant or its officers, agents, servants, and employees, or used for any purpose other than ingress and egress to and from the Premises, or for going from one part of the Building to another part of the Building.
RULE B 11 . The entrances, corridors, passages, stairways and elevators shall be under the exclusive control of the Landlord and shall not be obstructed, or used by the Tenant for any other purpose than ingress and egress to and from the Premises, except by normal use for receptionists.
RULE B 12 . Canvassing, soliciting and peddling in the Building is prohibited and Tenant shall cooperate to prevent the same.
RULE B 13 . All office and other equipment of any electrical or mechanical nature shall be placed by Tenant in Premises in approved settings to absorb or prevent any vibration, noise or annoyance.
RULE B 14 . There shall not be used in any space, or in the public halls of said Building, either by any Tenant or by jobbers or others, in the delivery or receipt of merchandise, any hand trucks, except those equipped with rubber tires and safeguards. All deliveries must be made via the service entrance and service elevator, when provided, during normal working hours. Landlords written approval must be obtained after normal working hours.
RULE B 15 . No heating or cooling apparatus not owned and controlled by the Landlord shall be used by Tenant unless approved by Landlord in writing.
RULE B 16 . No Tenant shall do or permit to be done on the Premises or bring or keep anything thereon, which shall in any way obstruct or interfere with the rights of other tenants, or in any way injure or annoy them, or conflict with the laws relating to fires, or with the regulations of the Fire Department, or any part thereof, or conflict with any of the rules and ordinances of the Board of Health. Tenants, their invitees and employees shall maintain order in the Building, shall not make or permit any improper noise in Building or interfere in any way with other tenants or those having business with them. No rooms shall be occupied or used as sleeping or lodging apartments at any time without permission of Landlord. No part of the Building shall be used or in any way appropriated for gambling, immoral or other unlawful practices. No intoxicating liquor or liquors shall be sold in the Building by Tenant without Landlords permission.
RULE B 17. Tenant shall not cause unnecessary labor by reason of carelessness and indifference to the preservation of good order and cleanliness in the Premises and in the Building.
RULE B 18. Tenants and their employees shall not throw, sweep drop or otherwise place any objects, dirt, refuse, or other substance out of the Premises into the corridors, stairwell, lobbies, elevators or other area in or about the Building.
RULE B 19. No painting shall be done, nor shall any alterations be made, to any part of the building by painting up or changing any particulars, doors or windows, nor shall there be any nailing, boring or screwing into the woodwork or plastering, nor shall any connection be made to the electric wire or gas or electric fixtures, without the consent in writing upon each occasion of Landlord or its agent. All glass, locks and trimmings in or upon the doors and windows of building shall be kept whole, and when any part thereof shall be broken, the same shall immediately be replaced or repaired and put in order under the direction and to the satisfaction of Landlord, or its agents, and shall be left whole and in good repair. Tenant shall not deface building, the woodwork or the walls of Premises.
RULE B 20 . Landlord reserves all vending rights.
RULE B 21 . The requirements of the Tenant will be attended to only upon application by telephone or in person at the office of the Building. Employees of Landlord shall not perform any work or do anything outside of their regular duties unless under special instructions from Landlord.
RULE B 22. Each Tenant shall see that the doors of its Premises are closed and locked and that all water faucets, water apparatus and utilities are shut off or turned off before Tenant or Tenants employees leave the Premises, so as to prevent waste and damage, and for any default or carelessness in this regard, Tenant shall make good all injuries or damages sustained by other tenants or occupants of the Building or Landlord. On multiple-tenancy floors, all Tenants shall keep the doors to the Building corridors closed at all times except for ingress and egress.
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RULE B 23. No curtains, draperies, blinds, shutters, shades, screens or other coverings, hangings or decorations shall be attached to, hung or placed in, or used in connection with any window of the Building without the prior written consent of Landlord. In any event, with the prior written consent of Landlord, such items shall be installed on the office side of Tenants standard window covering and in no way shall be visible from the exterior of the Building. Landlord will control all internal lighting that may be visible from the exterior of the Building and shall have the right to change any unapproved lighting, without notice to Tenant, at Tenants expense.
RULE B 24. Tenant shall not do, or permit anything to be done in or about the Building or bring or keep anything therein, that will in any way increase the rate of fire or other insurance in the Building, or on property kept therein or otherwise increase the possibility of fire or other casualty.
RULE B 25 . Tenant shall allow no drilling, jack hammering, punching or any other interference with the floor slabs of the Building, nor shall Tenant allow live loads to exceed 50 psf without the prior written consent of Landlord.
RULE B 26 . Tenant shall at all times during the term of this Lease have the non-exclusive right to park automobiles in the outdoor parking area of the Building. Landlord shall have the exclusive right to regulate and control parking areas and Tenant agrees to conform to such reasonable rules and regulations as Landlord may establish. Landlord may change the location of the parking lots on the land on which the Building is situated. Furthermore, Landlord may designate the area within which each car may be parked, and Landlord may change such designation from time to time. Landlord reserves the right to adopt any regulations necessary to curtail unauthorized parking, including the required use of Parking Permits. Landlord shall not be responsible for Tenants or any other Tenants parking requirements which exceed the number of spaces required by local authorities.
RULE B 27 . Landlord shall not be responsible to any tenant for the non-observance or violation of any of these Rules and Regulations by any other Tenant(s). Landlord may waive any one or more of these Rules and Regulations for the benefit of any particular Tenant or Tenants, but no such waiver by Landlord shall be construed as a waiver of such Rules and Regulations in favor of any other Tenant or Tenants, nor prevent Landlord from thereafter enforcing any such Rules and Regulations against any or all of the Tenants of the Building. Landlord reserves the right to make such other reasonable rules and regulations as in his judgment may from time to time be needed for the safety, care and cleanliness of Premises, and for the preservation of good order therein. Regulations shall be binding upon the parties hereto the same as if they had been inserted at time of execution.
RULE B 28. Landlord has designated this facility as a non-smoking building . No smoking is allowed in the building, the Premises, or the common areas of the building. Smoking is permitted only in designated exterior locations.
RULE B 29. Landlord may from time to time designate specific areas in which automobiles owned by Tenant, its employees, subtenants, licensees and concessionaires shall be parked, and in this regard, Tenant shall furnish to Landlord upon request a complete list of license numbers of all automobiles operated by Tenant, its employees, subtenants, licensees and concessionaires, and Tenant agrees that if any automobile or other vehicle owned by Tenant or any of its employees, subtenants, licensees or concessionaires shall at any time be parked in any area other than the specified areas designated for employee parking, Tenant shall pay to Landlord as Additional Rent upon demand an amount equal to the daily rate or charge for such parking as established by Landlord from time to time for each day or part thereof such automobile or other vehicle is so parked.
Page 16 of 21 Pages
PREMIER BUSINESS PARK CONDOMINIUMS ASSOCIATION, INC.
RULES AND REGULATIONS
AS OF: June 30, 2003
RULE PBC1 . No sign, picture, advertisement, or notice shall be displayed, inscribed, painted or affixed on any part of the outside or inside of a Unit, except of such color, size, style and materials as shall be approved by the Board in writing and subject to the provisions of Article 5, Sections 1 & 2 of the Bylaws. No showcases, or obstructions, signs, flagpoles, flags, barber poles, statuary, or any advertising device of any kind whatever shall be placed in front of or upon any Unit and the Board reserves the right to remove all such showcases, obstructions, signs, flags, barber poles, statuary or advertising devices and all signs other than those provided for, without notice to the Owner or Occupant and at Owner or Occupants expense.
RULE PBC 2 . No Owner or Occupant shall use or keep in the Unit any oil, kerosene, gasoline or other flammable or combustible fluid or any other material or hazardous article, other than limited quantities thereof necessary for the operation or maintenance of office equipment. No Owner or Occupant shall use or keep or permit to be used or kept any foul or noxious gas in the Unit, or permit or suffer the Unit to be occupied or used in a manner offensive or objectionable to the Board or other Owners or Occupants or those having business in the building. No Owner or Occupant shall put up or operate any steam engine, boiler or machinery in the Unit, or carry on any mechanical business therein. No commercial cooking or related activities shall be done or permitted by Owner or Occupant in the Unit.
RULE PBC 3. All glass, locks and trimmings in or upon the doors and windows of building shall be kept whole, and when any part thereof shall be broken, the same shall immediately be replaced or repaired and put in order under the direction and to the satisfaction of Board, or its agents, and shall be left whole and in good repair.
RULE PBC 4. Safes, vaults or other heavy items shall be placed by the Owner or Occupant in such places only as may be first specified in writing by the Board and any damage done to the exterior of the Unit or to the floor slab shall be paid for by the Owner or Occupant. Owner or Occupant shall allow no drilling, jack hammering, punching or any other interference with the floor slabs of the Building.
RULE PBC 5 . No part of the Building shall be used or in any way appropriated for gambling, immoral or other unlawful practices.
RULE PBC 6. No intoxicating liquor or liquors shall be sold in the Park by Owner or Occupant.
RULE PBC 7 . The Owner or Occupant shall not allow anything to be placed on the outside window ledges of the Unitor in the landscaping in front of the Unit or Building.
RULE PBC 8 . The water and wash closets and other plumbing fixtures shall not be used for any purposes other than those for which they were constructed, and no sweepings, rubbish, rags, or other substances shall be thrown therein. All damages to the sewer lines resulting from any such misuse shall be borne by the Owner or Occupant.
RULE PBC 9. No vehicle containing combustible fuel, shall be brought into the Unit, by the Owner or Occupant, their agents or employees.
RULE PBC 10 . Sidewalks, doorways, vestibules, and similar areas shall not be obstructed nor shall refuse, furniture, boxes or other items be placed therein by Owner or Occupant or its officers, agents, servants, and employees, or used for any purpose other than ingress and egress to and from the Unit, or for going from one Unit to another in the Park.
RULE PBC 11 . The driveways, parking areas, dumpster pads, landscaped and turf areas, the entrances, and all common areas shall be under the exclusive control of the Board and shall not be obstructed, or used by the Owner or Occupant for any other purpose than ingress and egress to and from the Unit.
RULE PBC 12 . Canvassing, soliciting and peddling in the Park is prohibited and Owner or Occupant shall cooperate to prevent the same.
Page 17 of 21 Pages
RULE PBC 13. All office and other equipment of any electrical or mechanical nature shall be placed by Owner or Occupant in the Unit so as to prevent any vibration, noise or annoyance to any other occupant.
RULE PBC 14 . No rooms shall be occupied or used as sleeping or lodging apartments at any time without permission of Board.
RULE PBC 15 . Owner or Occupants, their invitees and employees shall maintain order in the Building, shall not make or permit any improper noise in Building or interfere in any way with other Owner or Occupants or those having business with them.
RULE PBC 16 . No Owner or Occupant shall do or permit to be done on the Unit or bring or keep anything thereon, which shall in any way obstruct or interfere with the rights of other Owners or Occupants, or in any way injure or annoy them, or conflict with the laws relating to fires, or with the regulations of the Fire Department, or any part thereof, or conflict with any of the rules and ordinances of the Board of Health. No Owner or Occupant shall permit anything to be done in or about the Unit or find or keep anything therein, that will in any way increase the rate of fire or other insurance for the Association, or otherwise increase the possibility of fire or other casualty.
RULE PBC 17. Owner or Occupant shall not cause unnecessary labor by reason of carelessness and indifference to the preservation of good order and cleanliness in the Unit and in the Building.
RULE PBC 18. Owner or Occupants and their employees shall not throw, sweep drop or otherwise place any objects, dirt, refuse, or other substances on the outside of the Unit or in the common areas, parking lot or landscaping.
RULE PBC 19. No painting shall be done, nor shall any alterations be made, to any part of the exterior of the building by painting of or changing any particulars, doors or windows.
RULE PBC 20 . Board reserves all vending rights.
RULE PBC 21 . The Board will control all internal lighting that may be visible from the exterior of the Building and shall have the right to require that the Owner, or occupant change any unapproved lighting at Owner or Occupants expense.
RULE PBC 22. Each Owner or Occupant shall see that the doors of its Unit are closed and locked and that all water faucets or any other water apparatus are shut off and in good working order before Owner or Occupant or Owner or Occupants employees leave the Unit, so as to prevent waste and damage, and all injuries or damages sustained by the Association in this regard shall be at the expense of the Owner of such Unit.
RULE PBC 23. Other than the building standard aluminum mini-blinds, no curtains, draperies, blinds, shutters, shades, screens or other coverings, hangings or decorations shall be attached to, hung or placed in, or used in connection with any window of the Building without the prior written consent of Board.
RULE PBC 24. Owner or Occupant or their employees shall not use the dumpsters for personal trash, hazardous materials, bio-medical waste, combustible agents, oversized objects, mattresses, furniture and the like. Cardboard boxes should be broken down before placing them in the dumpster.
RULE PBC 25 . Owners and Occupants shall not install any canopy or awning or outside radio or television antenna, satellite dish or Citizens Band radio transmitter or other equipment of any kind without written permission of the Board, acting in accordance with the Boards discretion.
RULE PBC 26 . Owner or Occupant shall at all times during the term of this Lease have the non-exclusive right to park automobiles (but not trailers, motor homes, boats or buses, and recreational vehicles) in the outdoor parking areas of the Park. Board shall have the exclusive right to regulate and control parking areas and Owner and Occupants agree to conform to such reasonable rules and regulations as Board may establish. Board reserves the right to adopt any regulations necessary to curtail unauthorized parking, including the required use of Parking Permits. Board shall not be responsible for Owner or Occupants or any other Owner or Occupants parking requirements which exceed the number of spaces required by local authorities. Board may from time to time designate specific areas in which automobiles owned by Owner or Occupant, its employees, guests or invitees shall be parked, and in this regard, Owner or Occupant shall furnish to Board upon request a complete list of license numbers of all automobiles operated by Owner or Occupant and its employees or licensees. No extended overnight parking, or vehicles with for sale signs are allowed.
Page 18 of 21 Pages
RULE PBC 27 . Board shall not be responsible to any Owner or Occupant for the non-observance or violation of any of these Rules and Regulations by any other Owner or Occupant(s). Board may waive any one or more of these Rules and Regulations for the benefit of any particular Owner or Occupant or other Owners or Occupants, but no such waiver by Board shall be construed as a waiver of such Rules and Regulations in favor of any other Owners or Occupants or Owner or Occupant, nor prevent Board from thereafter enforcing any such Rules and Regulations against any or all of the Owner or Occupants of the Building.
RULE PBC 28 . Board reserves the right to make such other reasonable rules and regulations as in their judgment may from time to time be needed for the safety, care and cleanliness of Unit, and for the preservation of good order therein. Regulations shall be binding upon the parties hereto the same as if they had been inserted at time of execution.
Page 19 of 21 Pages
EXHIBIT C.
SITE PLAN
PREMIER BUSINESS PARK
EXHIBIT D.
MASTER DEED AND BY-LAWS
Page 20 of 21 Pages
EXHIBIT C
SITE PLAN
PREMIER BUSINESS PARK
EXHIBIT E
GUARANTY OF LEASE
The undersigned hereby unconditionally and irrevocably guarantees to Landlord, its successors and assigns, the full performance of each and all of the terms, covenants, and conditions of the attached Lease between Edmondson Investments, LLC and Constance Edwards and David Edwards to be kept and performed by the Tenant, including the payment of all rent and other charges due under the Lease, together with Landlords attorneys fees and all other costs and expenses incurred in enforcing Tenants obligations under the Lease or enforcing this Guaranty. No extension, modification, alteration or assignment of the attached Lease whatsoever shall in any manner release or discharge the undersigned. If there is more than one guarantor, then obligations set forth above shall be joint and several.
This Guaranty shall be binding upon the successors and assigns of Guarantor and shall run with the Lease and inure to the benefit of the successors and assigns of Landlord.
Guarantor: |
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SSN# | 593-05-4849 | |||||
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Constance Edwards | ||||||||
3188 Vera Valley Rd. |
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Franklin TN 37064 |
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615-599-5256 |
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(Home address & Phone Number) | ||||||||
Guarantor: |
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SSN# | 267-59-5749 | |||||
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David Edwards |
State of Tennessee )
County of Williamson )
On Oct. 19 th , 2005, before me the undersigned, a Notary Public in and for said State, personally appeared Constance Edwards and David Edwards known to me to be the persons whose names are subscribed to the within instrument and acknowledged that they executed the same.
WITNESS my hand and seal.
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Notary Public | ||||||
My Commission Expires: June 20, 2009 |
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Page 21 of 21 Pages
Exhibit 10.12
SUMMARY SHEET
This Summary Sheet (the Summary Sheet) is incorporated into and made a part of the attached Lease Agreement (this Summary Sheet and the Lease are collectively referred to as the Lease). In the event of a conflict between the terms of this Summary Sheet and the Lease, the terms of the Lease shall prevail. All capitalized terms used in this Summary Sheet but not defined herein shall have the meaning ascribed to them in the Lease.
1. | Effective Date: | October 08, 2008 | ||
2. | Landlord: | UCM/PROVENTURE-SYNERGY BUSINESS PARK, LLC | ||
3. | Address of Landlord: |
7101 Executive Center Drive, Suite 200 Brentwood, TN 37027 Attention: Property Management |
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With Copy to: | ||||
630 West Germantown Pike, Suite 300 Plymouth Meeting, Pennsylvania 19462 Attention: Mark B. Greco |
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4. | Tenant: | Franklin Synergy Bank | ||
5. | Address of Tenant: |
3301 Aspen Grove Drive Suite 200 Franklin, TN 37067 |
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6. | Premises: | Suite No. 110 in the Building located at 7101 Executive Center Drive, Brentwood, TN 37027. The parties agree that the Premises contain 3,688 rentable square feet. The Premises are outlined on Exhibit A . | ||
7. | Term. | |||
(a) Commencement Date: |
The earliest of: (i) the Possession Date; or (ii) the date on which Substantial Completion of Landlords Work would have occurred but for Tenant Delays. Landlord is targeting a commencement date of November 15, 2008. Any partial month rent will be prorated on a daily basis. | |||
(b) Expiration Date: |
The last day of the month in which the Fifth (5th) anniversary of the Commencement Date occurs. | |||
(c) Renewal Options |
One Term of five Years | |||
8. | Base Rent: |
Period |
Monthly Base Rent | |||
Year 1 | $ | 6,085.20 | ||
Year 2 | $ | 6,267.76 | ||
Year 3 | $ | 6,455.79 | ||
Year 4 | $ | 6,649.46 | ||
Year 5 | $ | 6,848.95 |
9. | Base Year: | Calendar year 2008. | ||
10. | Construction Allowance: | Not Applicable Landlord to construct the Premises per the attached Exhibit A at Landlords cost. The renovations will include new carpet, paint, and ceiling for the Premises. Tenant to select paint color and carpet from building standard finishes. | ||
11. | Security Deposit: | $6,085.20 | ||
12. | Permitted Use: | General office use, mortgage loan office, provided that Tenant shall not use any substantial portion of the Premises for a call center, |
Landlord and Tenant hereby agree to the terms of this Summary Sheet.
LEASE AGREEMENT
THIS LEASE AGREEMENT IS MADE AND ENTERED BY AND BETWEEN
THIS LEASE AGREEMENT is made and entered by and between UCM/ProVenture-Synergy Business Park, LLC, a Delaware limited liability company (Landlord), and Franklin Synergy Bank (Tenant).
WITNESSETH:
FOR $10.00 paid Landlord by Tenant, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
1.1 Certain Defined Terms . In addition to the terms defined in the Summary Sheet or elsewhere in this Lease, the following terms shall have the meanings ascribed to them in this section:
(i) Applicable Laws means all applicable governmental laws, statutes, orders, ordinances, codes, rulings, regulations and decrees, now in force or hereafter enacted.
(ii) Building means the building located at 7101 Executive Center Drive, Brentwood TN and depicted on Exhibit B . The parties agree that the Building contains 131,084 rentable square feet.
(iii) Business Days means Monday through Friday, excluding holidays on which national banking associations are authorized to be closed.
(iv) Common Areas means the portions of the Project that are, from time to time, made available by Landlord for the general use or benefit of tenants of the Building and their employees and visitors, including, without limitation, common corridors, elevators, vending areas, bathrooms, sidewalks, walkways, pedestrian ways, parking facilities, driveways, detention ponds, utility mains and signage.
(v) Event of Force Majeure means any strike, lockout, labor dispute, embargo, flood, earthquake, storm, lightning, fire, epidemic, act of God, war, national emergency,, civil disturbance or disobedience, riot, sabotage, terrorism, restraint by court order or other occurrence beyond the reasonable control of the party in question.
(vi) Hazardous Substances means all hazardous or toxic substances, materials, wastes, pollutants and contaminants that are listed, defined or regulated under Applicable Laws pertaining to health, safety or the environment.
(vii) Landlords Work shall have the meaning ascribed to it in Exhibit C .
(viii) Operating Expenses means the amounts described on Exhibit D .
(ix) Possession Date means the date on which Landlord tenders possession of the Premises to Tenant, with the Substantial Completion of Landlords Work having occurred.
(x) Project means the real property depicted on Exhibit B , including, but not limited to, all buildings, structures, fixtures, signs and other improvements located thereon, from time to time.
(xi) Rules & Regulations means the rules and regulations attached as Exhibit E , as the same may be amended, modified or supplemented, from time to time, by Landlord.
(xii) Rent means the Monthly Base Rent, additional rent, and other sums Tenant is required to pay under this Lease, including, without limitation, all amounts Tenant owes under Article 4.
(xiii) Substantial Completion shall have the meaning ascribed to it in Exhibit C .
(xiv) Taking means a taking by condemnation or eminent domain or a conveyance in lieu of such a taking.
(xv) Tenant Delays shall have the meaning ascribed thereto in Exhibit C .
(xvi) Controllable Expenses shall be defined as all operating expenses excluding taxes, insurance, utilities, and any labor portion of expenses that are directly affected by increases in the minimum wage laws.
1.2 Construction . Whenever the context may require, any pronoun used in this Lease shall include the masculine, feminine and neuter forms. All references to articles, sections and paragraphs shall be deemed references to the articles, sections and paragraphs of this Lease, unless the context shall indicate otherwise. The terms hereof, hereunder and similar expressions refer to this Lease as a whole and not to any particular article, section or paragraph contained herein. The titles of the articles, sections and paragraphs of this Lease are for convenience only and shall not affect the meaning of any provision hereof. Landlord and Tenant have agreed to the particular language of this Lease, and any question regarding the meaning of this Lease shall not be resolved by any rule providing for interpretation against the party who caused the uncertainty to exist or against the draftsman. FOR PURPOSES OF THIS LEASE, TIME SHALL BE CONSIDERED OF THE ESSENCE.
ARTICLE 2
PREMISES
2.1 Demise . Landlord leases the Premises to Tenant, and Tenant leases the Premises from Landlord, upon the terms and conditions set forth in this Lease.
2.2 Common Areas . During the Term, Tenant and its employees and visitors shall have the non-exclusive right to use the Common Areas for their intended purpose. Landlord may alter, enlarge, modify and remove portions of the Common Areas, from time to time, in such manner as Landlord deems desirable, in its sole and absolute discretion; provided, however, Landlord shall not make any changes to the Common Areas that will materially impair Tenants ability to use the Premises for the Permitted Use. Tenant and its employees and visitors shall have the right to use the number of parking spaces allocated to the Premises on the Summary Sheet. Tenants use of the parking facilities serving the Building shall be on a non-exclusive basis and no parking spaces shall be reserved for Tenant, its employees or visitors. Landlord makes no guarantees or assurances regarding the availability of parking at the Project. Landlord may designate, from time to time, the portions of the parking facilities serving the Building to be used by Tenant, its employees and visitors. Landlord may take reasonable steps to ensure that the tenants of the Building do not utilize more parking spaces than are allocated to them by Landlord, including, without limitation, implementing a parking validation system or requiring use of card keys (or other devices) to gain access to the parking areas serving the Project.
2.3 Disclaimer . Except as otherwise expressly provided herein, Tenant acknowledges and agrees that: (i) Landlord has not made, is not making and specifically disclaims any representation, warranty, guarantee or assurance to Tenant regarding the Premises or the Project, express or implied; and (ii) the Premises are being leased to Tenant AS IS WHERE IS and with all faults.
ARTICLE 3
TERM
3.1 Term . The term of this Lease (the Term) shall commence on the Commencement Date and expire on the Expiration Date, unless the same is terminated earlier or extended in accordance with the provisions of this Lease.
3.2 Delivery . If Landlord is unable to timely deliver possession of the Premises to Tenant for any reason, (i) Landlord shall not be in default under this Lease or otherwise liable to Tenant, and (ii) Tenant shall accept possession of the Premises when Landlord tenders the same to Tenant. Unless Tenant obtains Landlords prior written consent, Tenant shall not enter upon or occupy the Premises prior to Commencement Date. If Landlord permits Tenant to use or occupy the Premises prior to the Commencement Date, Tenant shall comply with and be bound by all of the terms of this Lease, except those related to the payment of Rent. Occupancy of the Premises by Tenant shall be conclusive evidence that the Premises are in a suitable condition and Landlords Work has been properly completed. If the Commencement Date set forth on the Summary Sheet is not a fixed date, then Tenant shall acknowledge the Commencement Date and the Expiration Date, by executing a Term Certification in the form attached hereto as Exhibit F, once the same are known with certainty.
ARTICLE 4
RENT
4.1 Base Rent . For each month during the Term, Tenant shall pay Landlord the applicable Monthly Base Rent specified on the Summary Sheet; provided the Monthly Base Rent for any extension of the Term resulting from Tenants exercise of a Renewal Option shall be the amount specified on Addendum #1. Each installment of the Monthly Base Rent shall be paid, in advance, on the first (1st) day of the month, except the first (1 st ) installment of Monthly Base Rent shall be paid by Tenant on the Commencement Date. The Monthly Base Rent shall be prorated for any partial month during the Term.
4.2 Tenants Share of Expenses .
(a) In addition to the Base Rent and the other amounts payable by Tenant under this Lease, Tenant shall pay Landlord an amount equal to Tenants share of the Operating Expenses during any calendar year in excess of the Base Years Operating Expense (Tenants Cost Allocation). (As an example, if Tenants Base Year Operating Expenses are $6.35 per rentable foot and the next year expenses run $6.45 per rentable foot, Tenant will be billed $.10 per rentable foot for its share of expenses. ) For any calendar year, Landlord may, at its option, either: (i) maintain a single set of books for the Project, in which case the Operating Expenses related to the Project shall be aggregated; or (ii) maintain a separate set of books for the Building, in which case Landlord shall separate the Operating Expenses related to the Building from the Operating Expenses related to the other buildings forming a part of the Project. If Landlord maintains a single set of books for the Project during any calendar year, then Tenants Cost Allocation for such year shall be the product obtained by multiplying: (i) the Operating Expenses related to the entire Project for such calendar year in excess of the Base Years Operating Expenses for the entire Project, by (ii) a fraction whose numerator is the rentable area of the Premises and whose denominator is the total rentable area of the buildings forming a part of the Project. If Landlord maintains a separate set of books for the Building during any calendar year, then Tenants Cost Allocation for such year shall be an amount equal to the product obtained by multiplying (i) the Operating Expenses related to the Building for such calendar year in excess of the Base Years Operating Expenses for the Building, by (ii) a fraction whose numerator is the rentable area of the Premises and whose denominator is the total rentable area of Building. In the event Landlord maintains a separate set of books for the Building during any calendar year, Landlord may allocate a portion of the Operating Expenses related to the Common Areas to the Building and include such amount in the Buildings Operating Expenses when calculating Tenants Cost Allocation. Operating Expenses related to the Common Areas may be allocated to the Building based on the percentage of the Projects rentable area located within the Building or utilizing such other method as Landlord deems appropriate, in its reasonable judgment. If Landlord maintains a single set of books for the entire Project during the Base Year, then the Base Years Operating Expenses for the Building shall be an amount equal to the product obtained by multiplying the Base Years Operating Expenses for the Project by a fraction whose numerator is the rentable area of the Building and whose denominator is the total rentable area of all the buildings forming a part of the Project. Landlord will provide a 6% annual cap on Controllable Expenses increases that can be passed on to Tenant as a part of Tenants Cost Allocation.
(b) Tenant shall pay one-twelfth (1/12th) of Landlords reasonable estimate of Tenants Cost Allocation for each calendar year after the Base Year (the Estimated Payments) on or before the first (1st) day of each month during such calendar year. If at any time it appears to Landlord that Tenants Cost Allocation for the current calendar year will vary from Landlords initial estimate of the same, Landlord shall have the right to revise the Estimated Payments for such calendar year, and subsequent Estimated Payments by Tenant for such calendar year shall be based upon Landlords revised estimate of Tenants Cost Allocation. Following the end of each calendar year within the Term, Landlord shall furnish Tenant with a final statement (the Expense Statement) showing the calculation of Tenants Cost Allocation for such calendar year. If the Estimated Payments made by Tenant are not sufficient to cover the actual amount of Tenants Cost Allocation for any calendar year, then Tenant shall pay Landlord the deficiency within thirty (30) days after Tenants receipt of the Expense Statement for such calendar year. If the Estimated Payments made by Tenant exceed the actual amount of Tenants Cost Allocation for any calendar year, then the excess shall be credited against future amounts Tenant owes under this section; provided any such excess existing at the end of the Term shall be refunded to Tenant once all of Tenants obligations and liabilities under this Lease are satisfied. If Tenant does not dispute any item or items included in the calculation of the Tenants Cost Allocation for any calendar year within thirty (30) days after Tenants receipt of the Expense Statement for such calendar year was delivered to it, Tenant shall be deemed to have approved such statement and shall have no right to contest the same. Tenant shall not employ any person or entity to inspect and audit any Expense Statement (and the records related thereto) whose compensation is based, in whole or in part, on the results of such inspection and audit. Tenants Cost Allocation shall be prorated for any partial month falling within the Term.
4.3 Payment . Tenants obligation to pay Rent is an independent covenant. All Rent shall be paid by Tenant without deduction, demand, notice or offset. Except as otherwise expressly provided herein, Tenant shall not be entitled to any abatement or reduction of the Rent. Tenant shall deliver all Rent to Landlord at the address specified in the Summary Sheet or such other place as Landlord may designate to Tenant by written notice. The acceptance of any Rent by Landlord (directly, through a lockbox or by other means) shall not constitute or be deemed to be: (i) a waiver of any claim or right, including, but not limited to, any claim based on Tenants default under or non-compliance with the terms of this Lease, (ii) a grant of consent or permission with respect to any matter, or (iii) an acknowledgment of Tenants purported exercise of any option. In the event Landlord does not want to accept any installment of Rent paid by Tenant, Landlord may return the amount of such installment to Tenant (irrespective of whether or not Landlord has cashed the check for such installment or such installment has been previously deposited into or processed through a lockbox or other account) and Landlord shall
thereafter not be deemed to have accepted the same. If two (2) or more checks for Rent are rejected due to insufficient funds, Landlord shall have the right to require that all future payments of Rent be made by cashiers check.
4.4 Late Charges . If Tenant fails to pay any installment of Rent within ten (10) days after the same is due, Tenant shall pay to Landlord a late charge equal to five percent (5%) of such installment. In addition, any past due installment of Rent shall bear interest from the date due until paid at the lesser of eighteen percent (18%) per annum or the maximum rate permitted under Applicable Laws. The parties agree that the provisions of this subsection are reasonable and shall not be deemed to be (i) a consent by Landlord to late payments, (ii) a penalty, (iii) a waiver of Landlords right to insist on the timely payment of Rent, or (iv) a waiver or limitation of the rights and remedies available to Landlord on account of the late payment of any Rent.
4.5 Rental Taxes . If, at any time during the Term, (i) a tax or assessment is levied directly on any of the Rent, or (ii) a tax or assessment (other than a general income tax) is imposed on Landlord that is measured or based, in whole or part, on any of the Rent, then Tenant shall reimburse Landlord for such tax or assessment within fifteen (15) days after its receipt of a written demand from Landlord.
ARTICLE 5
LANDLORD SERVICES
5.1 Services . Landlord shall furnish the following services to Tenant: (i) elevator service on a non-exclusive basis, subject to such reasonable access controls as Landlord may impose, from time to time; (ii) janitorial services for the Premises, Monday through Friday, excluding holidays; (iii) heating and air conditioning at levels sufficient for normal office use between the hours of 7:00 a.m. to 7:00 p.m. on Monday through Friday, excluding holidays; (iv) water for drinking, cleaning and lavatory purposes to the points of supply furnished by Landlord; and (v) electricity for normal office uses, as reasonably determined by Landlord. Landlord shall not be liable for damages suffered by Tenant as a result of any interruption or inadequacy of such services. Any interruption or inadequacy of such services shall not result in the termination of this Lease, shall not constitute a constructive eviction, and shall not entitle Tenant to an abatement or reduction of Rent. Landlord does not guarantee any level of security at the Project, and Tenant shall not have any claims against Landlord based upon an assertion that Landlord failed to provide adequate security to the Project, the Premises, or otherwise.
5.2 Excess Usage . If Tenant desires heating or air conditioning service at the Premises for periods outside those specified in Section 5.1, then Landlord shall endeavor, in good faith, to provide such service, upon reasonable prior written notice from Tenant, and Landlord may bill Tenant for such additional service, from time to time. If Landlord reasonably determines that Tenants consumption of electricity exceeds the amount specified in clause (v) of Section 5.1 hereof, Landlord may bill Tenant for such additional consumption, from time to time. The amount of such additional consumption shall be determined at Landlords election, by either or both of (i) a survey of standard or average tenant usage of electricity in the Building performed by a reputable consultant selected by Landlord and paid for by Tenant, and (ii) a separate meter in the Premises to be installed, maintained, and read by Landlord, all at Tenants expense. Tenant shall not install any electrical equipment requiring special wiring or voltage in excess of 110 volts, unless Tenant obtains Landlords prior written approval in accordance with Article 8. The use of electricity at the Premises shall not exceed the capacity of the existing electrical system serving the Premises. If Landlord approves the installation of any risers or wiring required due to Tenants excess electrical requirements, the same shall be installed by Landlords contractor, at Tenants expense. Tenant shall pay all amounts it owes Landlord, under this section within ten (10) Business Days after Landlords written demand for the same.
ARTICLE 6
USE OF PREMISES
6.1 Permitted Use . Tenant shall use the Premises for the Permitted Use and activities incidental thereto and for no other business or purpose without the prior written consent of Landlord, which consent may be granted or withheld by Landlord in its sole and absolute discretion.
6.2 Rules & Regulations . Tenant shall comply, and cause its agents, employees, contractors, representatives, subtenants, licensees and invitees to comply, with the Rules and Regulations. Landlord agrees not to amend the Rules and Regulations in a manner that will materially impair Tenants ability to use the Premises for the Permitted Use. Any failure by Landlord to enforce the Rules and Regulations, either against Tenant or any other person or entity, shall not constitute a waiver of the same, and Landlord shall have no liability to Tenant as a result of Landlords failure to enforce the Rules and Regulations.
6.3 Hazardous Substances . Tenant shall not cause or permit any Hazardous Substances to be used, generated, handled, stored, disposed of or released on or about the Premises, except incidental quantities of cleaning and office supplies. Tenant agrees to comply with ail Applicable Laws relating to the use, handling, storage and disposal of Hazardous Substances at the Premises and shall remove all Hazardous Substances from the Premises upon the expiration or termination of this Lease.
6.4 Compliance . Tenant shall comply and cause the Premises to comply with all Applicable Laws, all covenants, conditions, restrictions, easements and other agreements encumbering the Project, and the regulations of the Board of Fire Insurance Underwriters or any similar body, and Tenant shall not use the Premises or permit anything to be done in the Premises that conflicts with or violates the same.
6.5 Operations . Tenant shall not use or permit the Premises to be used in a manner that: (i) unreasonably disturbs any other person or entity; (ii) is hazardous or dangerous, (iii) is illegal; (iv) constitutes a nuisance (public or private); or (v) violates or increases the cost of any insurance policy covering the Project. Tenant shall indemnify, defend and hold harmless Landlord from and against any and all claims, lawsuits, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys fees, court costs and litigation expenses) arising or resulting from any acts, omissions or operations of Tenant or its employees, agents, contractors, representatives, subtenants, licensees or invitees, including, without limitation, the use, disposal or release of any Hazardous Substances.
6.6 No Liens . Notice is hereby given that Landlord will not be liable for any work, services, materials or labor furnished to Tenant, and no mechanics, materialmens or other lien arising or resulting from Tenants acts or omissions (collectively, Tenant Liens) shall attach to Landlords interest in the Premises or the Project. Tenant shall keep the Premises and the Project free and clear of all Tenant Liens. In the event Tenant fails to discharge any Tenant Lien encumbering the Premises or the Project within twenty (20) days after the filing thereof, Landlord may (but shall not be obligated to) cause such Tenant Lien to be released and discharged, in which event Tenant shall reimburse Landlord for all costs it incurs in connection therewith, including, but not limited to, reasonable attorneys fees.
6.7 Waiver . Except to the extent caused by the gross negligence or willful misconduct of Landlord, Tenant hereby expressly waives and releases all claims it may, now or hereafter, have against Landlord and its owners, directors, officers, employees, agents, contractors and representatives as a result of any injury, damage to property, or interruption of Tenants use of the Premises, including, but not limited to, any injury, damage or interruption caused by (i) wind, water, flooding, snow, ice, act of God or act of nature, (ii) any interruption of utility service to the Premises, (iii) any defect in the Premises (latent or otherwise), (iv) any failure of a mechanical system, electrical system, plumbing system or heating and air conditioning system, (v) the backing up of any sewer pipe or downspout, or (vi) the bursting, breaking, leaking or running of any tank, tub, washstand, water closet, drain or pipe. Nothing herein shall be deemed to limit the provisions of Section 10.3.
ARTICLE 7
REPAIRS
7.1 Tenant Repairs . Tenant shall, at its sole cost and expense, perform all repairs, maintenance and replacements required to keep the Premises in good working order and condition. including, but not limited to, interior walls, carpeting, paint, wall coverings, doors, locks, cabinets, counters, telephones and appliances in accordance with Section 7.1.
7.2 Landlord Repairs . Landlord shall perform all repairs necessary to keep the Common Areas and the roof, exterior walls, foundation, HVAC, plumbing, electrical system and structural elements of the Building in good working order and condition, within a reasonable time after it receives written notice of the need for such repairs from Tenant. Tenant shall reimburse Landlord, within thirty (30) days after receipt of invoice, for the actual and reasonable cost of all maintenance, repairs and replacements to the Common Areas or the roof, exterior walls, foundation and structural elements of the Building required as a result of the negligence or misconduct of Tenant or its agents, employees, contractors or representatives.
ARTICLE 8
ALTERATIONS
8.1 Alterations . Tenant shall not make any alterations, additions or improvements to the Premises, unless the same have been approved by Landlord, in writing. Landlord agrees not to unreasonably withhold, qualify or delay its approval of any alterations, additions or improvements that Tenant proposes to make to the Premises, except Landlord may withhold its approval, in its sole and absolute discretion, of alterations, additions or improvements that affect the exterior, plumbing system, electrical system, roof, foundation or the structural components of the Premises or the Project. All alterations, additions and improvements to the Premises must be made by Tenant in a good and workmanlike manner, using new materials, and must comply with Applicable Laws. Prior to making any alterations, additions or improvements to the Premises, Tenant shall (i) obtain Landlords written approval of the plans and specifications for such alterations, additions or improvements, and (ii) furnish Landlord with reliable evidence that Tenant has sufficient funds to complete such alterations, additions or improvements. Any such permitted alterations, additions or improvements must be constructed or installed by the contractor designated by Landlord, and Tenant shall pay Landlord an oversight fee in an amount equal to five percent (5%) of the cost of such work. All alterations, additions and improvements to the Premises must be made by Tenant in a good and workmanlike manner, using new materials, and
must comply with Applicable Laws. Any work performed by the Tenant shall not interfere with the other tenants in the Building. Tenants alterations, additions and improvements to the Premises shall remain and become the property of Landlord upon the expiration or earlier termination of this Lease, unless Landlord requires that Tenant remove the same as provided in Article 15. In the event that Landlord consents, in writing, to Tenant installing any facilities on or making any alterations to the roof of the Building, Tenant shall: (i) not void, violate or limit any roof warranty; (ii) follow the roof manufacturers recommendations and requirements; and (iii) ensure the installation or alteration does not damage or exceed the load bearing capacity of the roof. If any warranty covering the roof is voided or limited as a result of Tenants acts, installations or alterations, Tenant shall reimburse Landlord for the cost of all repairs and damages that would have been covered by such warranty had the same not been so voided or limited. Tenant shall require any contractor of Tenant employed pursuant to this section to maintain all insurance reasonably required by Landlord.
ARTICLE 9
TRANSFER
9.1 Assignment & Subletting .
(a) Tenant shall not, voluntarily or by operation of law, assign, mortgage, pledge, hypothecate or encumber this Lease, or sublet all or a portion of the Premises, without Landlords prior written consent, which consent may be granted or withheld by Landlord in its sole and absolute discretion. An assignment of this Lease by Tenant shall be deemed to have occurred if in a single transaction or in a series of transactions the ownership interests (whether stock, partnership interests, membership interests or other) of Tenant or any parent company of Tenant are transferred, diluted, reduced or otherwise affected with the result that the present owners have less than a 51% ownership interest in Tenant or the parent company, as applicable, or cease to control the management and operation of Tenant or the parent company, as applicable. Notwithstanding anything to the contrary, the provisions of this subsection shall not apply to Tenant or any parent company of Tenant so long as its stock is publicly traded on a recognized national securities exchange; provided if Tenant or any parent company of Tenant ceases to be publicly traded, the provision of this section shall apply thereafter, based on the ownership of Tenant or the parent company at the time it became privately owned. Except as otherwise expressly permitted hereunder, Tenant shall not allow any other person or entity to occupy the Premises (or any portion thereof). Landlords consent to an assignment or subletting shall not be deemed a consent to any subsequent assignment or subletting. Landlord shall be entitled to, and Tenant shall remit to Landlord, any profit that may inure to Tenant as a result of an assignment of this Lease or subletting of the Premises (or portion thereof). Landlord shall have the right to directly collect the rent payable by any subtenant of Tenant and apply the same to Tenants obligations under this Lease, and no further instruments shall be required for Landlord to exercise such right; provided Tenant agrees to execute and cause its subtenant to execute any instruments reasonably requested by Landlord for the purposes of allowing it to collect such rents.
(b) At the time Tenant requests Landlords approval of any proposed assignment of this Lease or subletting of the Premises, Tenant shall pay Landlord the sum of Five Hundred and No/100 Dollars ($500.00) to cover the cost of processing such request, including, but not limited to, administrative costs and legal fees. Tenant shall deliver to Landlord copies of all documents executed in connection with any permitted assignment of this Lease or any permitted subletting of the Premises by Tenant, which documents must be in form and substance reasonably satisfactory to Landlord; provided, any assignee of Tenants interest in this Lease must assume all of Tenants obligation and liabilities hereunder, and any subtenant of Tenant must agree (for the benefit of Landlord) to comply with all the terms of this Lease, No acceptance by Landlord of any Rent or other sum from an assignee or sublessee shall be deemed a consent to Tenants assignment of this Lease or subletting of the Premises (or a part thereof).
9.2 No Release . Notwithstanding any assignment of this Lease, Tenant shall be primarily responsible for the satisfaction of its obligations and liabilities hereunder, and such responsibility shall not be limited, affected, diminished or discharged by any event whatsoever, including, but not limited to, the compromise or settlement (with or without release) of any other person or entity liable for the payment of Tenants liabilities and/or the performance of Tenants obligations under this Lease, Landlords failure to file suit against any assignee of Tenant (regardless of whether such assignee is becoming insolvent, is believed to be about to leave the state or any other circumstance), Landlords failure to give Tenant notice of any default, the unenforceability of any provision of this Lease against an assignee of Tenant due to bankruptcy discharge or otherwise, Landlords failure to insist upon the strict performance of the terms of this Lease, the extension, modification or amendment of this Lease, any subsequent assignment of this Lease or subletting of the Premises (whether or not consented to by Landlord) or Landlords failure to exercise diligence in collection. Any assignment of this Lease or subletting of the Premises (or portion thereof) not approved by Landlord, in writing, shall, at Landlords option, be void.
ARTICLE 10
INSURANCE
10.1 Tenants Insurance .
(a) Throughout the Term, Tenant shall maintain, at its sole cost and expense: (i) commercial general liability insurance or its equivalent, written on an occurrence basis, with a combined single limit for personal injury, death and property damage of not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; (ii) property insurance covering Tenants alterations, additions and improvements to the Premises and Tenants fixtures, furnishings, equipment and personal property, in an amount equal to one hundred percent (100%) of their replacement cost, written on a Causes of Loss Special Form basis or its equivalent. Landlord and its lenders shall be named as additional insureds under the liability insurance policies that Tenant is required to obtain hereunder. Tenants insurance shall provide primary coverage to Landlord when any insurance policy issued to Landlord provides duplicate or similar coverage, and in such circumstance Landlords insurance policy will be excess over Tenants policy. In no event shall the amount of Tenants insurance coverage limit the liability of the Tenant under this Lease.
(b) The insurance policies that Tenant is required to obtain under this Lease (i) shall be issued by a reputable insurance company licensed in Tennessee and approved by Landlord, in writing, (ii) shall have a deductible of Fifty Thousand and No/100 Dollars ($50,000.00) or less, and (iii) shall provide that they cannot be amended, cancelled or terminated unless Landlord has been given thirty (30) days prior written notice, if such a provision is available on commercially reasonable terms. Landlord shall have the right to require, from time to time, that Tenant increase the amount of its insurance coverage and/or obtain additional insurance coverage so long as Landlord is acting in a commercially reasonable manner. If Tenant fails to maintain any of the insurance required under this Lease, then, in addition to other remedies available hereunder, at law or in equity, Landlord may purchase such insurance, on behalf of Tenant, in which event Tenant shall reimburse Landlord for the cost of such insurance, upon demand. On the Commencement Date and each anniversary thereof, Tenant shall provide Landlord with certificates evidencing that the insurance Tenant is required to maintain hereunder is in full force and effect. Upon request, Tenant shall furnish Landlord with the original (or a certified copy) of each policy of insurance required hereunder and evidence of the payment of all premiums for the same.
10.2 Landlords Insurance . Throughout the Term, Landlord shall maintain: (i) property insurance covering the Project (excluding alterations, additions and improvements made by Tenant and Tenants personal property) in an amount equal to one hundred (100%) percent of its replacement cost written on a Causes of Loss Special Form basis or its equivalent; and (ii) commercial general liability insurance or its equivalent, written on an occurrence basis, with a combined single limit for personal injury, death and property damage of not less than Three Million and No/100 Dollars ($3,000,000.00) per occurrence.
10.3 Waiver of Claims/Subrogation Rights . Notwithstanding anything to the contrary contained herein, Landlord and Tenant each hereby waives all claims that it may have against the other party (and such other partys owners, directors, officers, employees, agents, contractors and representatives) for damages that are actually covered by its property insurance or business interruption insurance or that would have been covered had it maintained the insurance required under this Lease; provided the foregoing waiver shall not apply if it would have the effect of invalidating, but only to the extent of such effect, any insurance coverage of Landlord or Tenant. If possible on commercially reasonable terms, Landlord and Tenant shall cause the insurers issuing their property insurance and business interruption insurance to waive all of their subrogation rights against the other party (and such other partys owners, directors, officers, employees, agents, contractors and representatives), and each party shall supply the other with appropriate evidence confirming that such waiver is in effect. For the purposes of this subsection, each party shall be deemed to be insured against losses and damages that are within the deductible of any of its insurance policies. The provisions of this section shall apply to claims regardless of their cause or origin, including, without limitation, claims arising due to negligence.
ARTICLE 11
CASUALTY
11.1 Restoration . In the event the Premises or the Building are damaged by fire or other casualty, Landlord or Tenant shall have the right to terminate this Lease by giving written notice to Tenant if: (i) such damage cannot be restored within one hundred eighty (180) days, or (ii) the Building is damaged in excess of thirty five percent (35%) of its replacement cost (excluding the replacement cost of foundations and footings). In addition, Landlord shall have the right to terminate this Lease if: (i) any of Landlords lenders does not allow the property insurance proceeds paid on account of such fire or casualty to be used by Landlord to restore the damaged areas; (ii) the insurance proceeds paid on account of the fire or other casualty are not sufficient to pay the cost of restoring the damaged portions of the Premises and the Common Areas; or (iii) there is less than eighteen (18) months remaining until the end of the Term. In the event that Landlord or Tenant desires to terminate this Lease pursuant to this section, it shall so notify the other party, in writing, within sixty (60) days after the date of the fire or casualty. If this Lease is not terminated pursuant to this section, then: (i) Landlord shall diligently restore the Premises and any Common Areas required for the use of the Premises to substantially the condition
existing immediately prior to such fire or casualty, with such modifications as are required to comply with applicable laws; and (ii) Tenant shall diligently restore Tenants alterations, additions and improvements to the Premises. Notwithstanding anything to the contrary, Landlord shall not be obligated to commence restoring the Premises or any Common Areas following a fire or other casualty until Landlord has received the insurance proceeds required to fund the same.
11.2 Abatement . During any period when the Premises are rendered untenantable, in whole or in part, as a result of a fire or other casualty, the Base Rent shall abate in proportion to the area of the Premises rendered untenantable. The foregoing abatement in Base Rent shall terminate when Landlord has completed its restoration obligations required hereunder. Notwithstanding the foregoing, Tenant shall not be entitled to any abatement in Base Rent if the fire or other casualty which rendered the Premises untenantable was caused by the Tenant or its or any of its agents, employees, contractors or representatives.
ARTICLE 12
CONDEMNATION
12.1 Termination . In the event of a Taking of all or substantially all of the Project or the Premises, this Lease shall automatically terminate, effective as of the date possession of the same is actually taken. If the continued operation of the Project is no longer economically viable as a result of any Taking, as determined by Landlord in its reasonable judgment, then Landlord may terminate this Lease by giving written notice to Tenant within sixty (60) days after the date of such Taking. If there is a Taking of a material portion of the Premises and the remainder of the Premises is not suitable for the continued operation of the business being conducted therein, then Tenant may terminate this Lease by giving written notice to Landlord within sixty (60) days after it is notified of such Taking.
12.2 Restoration . In the event this Lease is not terminated after a Taking of any portion of the Premises, Landlord agrees to restore the Premises to the extent reasonably necessary to render the same tenantable; provided, however, in no event shall Landlord be required to spend more than the award paid Landlord on account of such Taking. The Rent shall not be reduced or abated as a result of a Taking affecting the Premises or the Project, except if there is a taking of a portion of the Premises the Base Rent following such Taking shall be reduced in proportion to the reduction in the square footage of the Premises resulting from a Taking.
12.3 Awards . Landlord shall be entitled to receive the entire award paid on account of a Taking of all or any portion of the Premises or the Project, except Tenant shall be entitled to receive amounts expressly awarded to cover Tenants moving expenses. Without limiting the generality of the foregoing, Tenant shall not be entitled to receive any award for the loss of its leasehold estate or interest in the Premises (or portion thereof) as a result of any Taking.
ARTICLE 13
DEFAULT AND REMEDIES
13.1 Events of Default . The following shall each be deemed to be a default by Tenant under this Lease (an Event of Default):
(i) Tenants failure to pay any Rent when due, unless such failure is cured by Tenant within five (5) days after it receives written notice from Landlord; or
(ii) Tenants failure to comply with any of the terms of this Lease related to assignment or subletting; or
(iii) Tenants failure to furnish an estoppel certificate to Landlord within the period provided in Section 19.1; or
(iv) Tenants failure to comply with any of the other terms of this Lease, unless such failure is cured within thirty (30) days after Tenant receives written notice from Landlord; provided if such failure cannot reasonably be cured within thirty (30) days, no Event of Default shall be deemed to have occurred so long as Tenant commences to cure such failure within thirty (30) days after receiving written notice from Landlord and completes such cure within a reasonable time thereafter, not to exceed ninety (90) days; or
(v) (A) the bankruptcy or insolvency of Tenant, (B) the filing by or against Tenant of a petition (voluntarily or involuntarily) seeking to have Tenant declared bankrupt or insolvent or seeking to reorganize Tenant, unless the petition is dismissed with sixty (60) days after its filing, (C) the appointment of a receiver or trustee for all or a substantial portion of Tenants assets, or (D) the assignment of all or substantially all of Tenants assets for the benefit of its creditors.
13.2 Remedies . Upon the occurrence of an Event of Default, Landlord may, in addition to other remedies available hereunder, at law or in equity:
(i) Terminate this Lease, recover possession of the Premises, and remove Tenant and its property from the Premises, by force if necessary, without being liable for prosecution or any claim for damage. In the event of this Lease is terminated by Landlord pursuant to this subparagraph, Landlord shall be entitled to recover all damages that it suffers as a result of Tenants default or the termination of this Lease, including (but not limited to) consequential, incidental and actual damages, the cost of recovering possession of the Premises, expenses of reletting the Premises, the cost of repairs, renovation and alterations performed in connection with the reletting of the Premises, brokerage commissions, advertising expenses, and reasonable attorneys fees. Without limiting the generality of the foregoing, if this Lease is terminated due to Tenants default hereunder, Landlord shall have the right to recover an amount equal to the present value of the Rent that Tenant would have been required to pay for the remainder of the Term, minus the then fair rental value of the Premises during such period, calculated by discounting such amount to the present at the rate of eight percent (8%) per annum.
(ii) Without terminating this Lease, terminate Tenants right to possession of the Premises and, if necessary, expel Tenant and its effects therefrom, without being liable for prosecution or any claim for damages. If Landlord retakes possession of the Premises from Tenant pursuant to this subparagraph, Landlord may relet the Premises for the benefit of Tenant, at such rent, for such duration and upon such other terms as Landlord, in its sole and absolute discretion, deems advisable, and Landlord may remodel the Premises to the extent it deems necessary or proper to facilitate such reletting. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting or endeavoring to relet the Premises pursuant to this subparagraph, including, without limitation, reasonable attorneys fees, brokers commissions, advertising expenses and remodeling costs. Notwithstanding the termination of Tenants right to possession of the Premises pursuant to this subparagraph, Tenant shall continue to pay the Rent, when due; provided if Landlord is successful in reletting the Premises, any rent received by Landlord from such reletting that is allocable to periods falling within the Term shall be applied to reduce the amounts Tenant owes Landlord under this Lease, in such order as Landlord determines proper, including, without limitation, costs and expenses that Landlord incurs to effect compliance with Tenants obligations hereunder, costs Landlord incurs to recover possession of the Premises, reletting costs, damages, and rental deficiencies. If the rent received by Landlord from reletting the Premises that is allocable to periods falling within the Term exceeds the amounts Tenant owes under this Lease, Landlord shall be entitled to such excess and Tenant shall not have any right thereto.
(iii) Enter upon the Premises and do whatever Tenant is obligated to do under the terms of this Lease, without being liable for prosecution or any claim for damages, and Tenant agrees to reimburse Landlord for all costs and expenses that Landlord incurs in connection therewith.
(iv) Obtain specific performance of the terms of this Lease or injunctive relief.
The foregoing remedies are cumulative and non-exclusive, and the exercise by Landlord of any of its remedies under this Lease shall not prevent the subsequent exercise by Landlord of any other remedies provided herein. All remedies provided for in this Lease may, at the election of Landlord, be exercised alternatively, successively, or in any other manner. Landlords acceptance of Rent following any Event of Default shall not be construed as a waiver of such Event of Default. Landlord shall not be deemed to terminate this Lease pursuant to this section unless Landlord expressly terminates this Lease in writing. Any reletting of the Premises by Landlord pursuant to this section shall be presumed to be for and on behalf of Tenant, unless Landlord expressly provides otherwise in writing to Tenant.
13.3 Limits on Duty to Mitigate . Landlord shall use reasonable efforts to mitigate the damages it suffers as a result of Tenants default under this Lease; provided Tenant agrees that (i) Landlord will only be required to use the same efforts to re-lease the Premises that it uses to rent the other space in the Project, (ii) Landlord will not be required to give preference to the Premises over other vacant space owned by Landlord or its affiliates, (iii) Landlord may reject any prospective tenant who, in Landlords reasonable discretion, is disreputable, whose business is not compatible with the Project, or has insufficient financial capacity, and (iv) Landlord may reject any offer to lease the Premises at a rate which is less than the rate then being charged for comparable space in the Project or on terms that are less favorable than those contained in this Lease or which (in Landlords reasonable discretion) is not in the best interests of the Project.
ARTICLE 14
ENTRY
14.1 Right of Entry . Landlord shall have the right to enter the Premises to: (i) conduct inspections; (ii) exercise its rights under this Lease, and (iii) show the Premises to prospective purchasers, lenders and tenants; provided Landlord shall not unreasonably interfere with the operation of Tenants business therein. Landlord shall retain a key to all locks at the Premises, excluding Tenants vaults, safes and cabinets. Landlord shall have the right to install pipes, conduits, lines, wires, vents, ducts and other incidental facilities in the Premises; provided (i) Landlord shall not materially interfere with Tenants use of the Premises and (ii) Landlord shall promptly repair any damage to the Premises resulting therefrom. During the nine (9) months prior to the expiration of the Term, Landlord may place for rent and other similar notices in the Premises and Tenant shall permit such notices to remain without molestation.
ARTICLE 15
SURRENDER
Upon the expiration or earlier termination of this Lease or the termination of Tenants right to possession of the Premises, (i) Tenant shall quit and surrender possession of the Premises to Landlord, broom clean and in a good condition and repair, ordinary wear and tear excepted, and (ii) provide Landlord with the keys to all locks and the combination of all safes, cabinets and vaults, if any, at the Premises. Before surrendering possession of the Premises to Landlord, Tenant shall, at its expense, remove all of its furnishings, equipment, trade fixtures, merchandise, signs and other personal property, and Tenant shall promptly repair all damage to the Premises resulting from the removal of such items. If Tenant fails to remove any of the foregoing items from the Premises by the expiration or termination of this Lease or the termination of Tenants right to possession of the Premises, then Landlord may, at its sole option, (i) treat Tenant as a holdover tenant, in which event the provisions of Section 19.6 shall apply, or (ii) deem any or all of such items abandoned and dispose of same in any manner Landlord sees fit and retain all amounts received therefrom, in which event Tenant shall reimburse Landlord, upon demand, for all costs incurred by Landlord to remove and dispose of such items, including, without limitation, the cost of repairing any damage to the Premises caused by the removal of such items and storage charges (if Landlord elects to store the same). Upon the expiration or earlier termination of this Lease or the termination of Tenants right to possession of the Premises, Tenant shall, with reasonable diligence, remove the alterations, additions and improvements to the Premises installed by or on behalf of Tenant, including, but not limited to, all remove all low voltage wires, telephone and computer systems and related installations, cables and wiring, to the extent required by Landlord in writing, repair any damage resulting from the removal of such items, and restore the areas where the same were located to their original condition.
ARTICLE 16
SUBORDINATION AND ATTORNMENT
16.1 Subordination . This Lease shall be subject and subordinate to any and all mortgages, deeds of trust or other security interests now or at any time hereafter constituting a lien, encumbrance or charge upon the Premises (collectively, Mortgages), including, but not limited to, all renewals, modifications, consolidations, replacements, amendments, supplements and extensions thereof; provided, as a condition to such subordination, the holder of a Mortgage (a Mortgagee) must agree in writing not to disturb Tenants possession of the Premises and the rights and privileges granted to Tenant under this Lease, so long as no Event of Default has occurred and provide a copy of such written agreement to Tenant. Tenant agrees to execute any and all instruments that are reasonably requested by a Mortgagee for purposes of subordinating this Lease to its Mortgage or protecting its interest in the Premises, as long as the same contains non-disturbance language as required in this Section 16.1. Notwithstanding anything herein to the contrary, if any Mortgagee elects to have Tenants interest in this Lease superior to its Mortgage, then by notice to Tenant from such Mortgagee, this Lease shall be deemed superior to such Mortgage, whether this Lease was executed before or after the same.
16.2 Attornment . If Landlords interest in the Premises is transferred to a Mortgagee or any purchaser at a foreclosure sale (a Foreclosure Purchaser), Tenant shall be bound to such Mortgagee or Foreclosure Purchaser under the terms of this Lease and Tenant shall attorn to such Mortgagee or Foreclosure Purchaser, as the landlord hereunder, unless this Lease is terminated. The foregoing provision shall be self-operative; provided, however, Tenant shall, upon written demand, execute documentation confirming the matters set forth in this section. Any Mortgagee or Foreclosure Purchaser succeeding to the interest of Landlord in the Premises shall not be (i) bound by any payment of Rent made by Tenant more than one (1) month in advance, (ii) liable due to any act or omission of a prior landlord (including, without limitation, Landlord), (iii) subject to any offset rights or defenses of Tenant arising or related to periods prior to the date the Mortgagee or Foreclosure Purchaser acquires such interest, or (iv) responsible for any security or other deposit not transferred to it.
16.3 Mortgagee Protection . If Tenant is notified of the name and address of any Mortgagee, Tenant agrees that it will send a copy of all notices that it delivers to Landlord to such Mortgagee, by U.S. Certified Mail (Return Receipt Requested) or nationally recognized overnight delivery service, including, but not limited to, default notices. Tenant shall not terminate this Lease or make any expenditures on account of any default by Landlord under this Lease, unless Tenant notifies (in writing) each existing Mortgagee of such default and the Mortgagee fails to cure the default within sixty (60) days after its receipt of such notice; provided if the Mortgagee cannot reasonably cure the default within said sixty (60) day period, then Tenant shall not have the right to terminate this Lease or make any expenditure on account of the default so long as the Mortgagee commences to cure the default within said sixty (60) day period and completes the cure thereof with reasonable diligence. Tenant shall accept any Mortgagees cure of a Landlord default. No amendment, cancellation, termination, surrender or modification of this Lease shall be effective against a Mortgagee, unless (i) the Mortgagee has consented thereto, in writing, or (ii) Landlord is entitled to enter into the same without obtaining the Mortgagees consent. No Mortgagee shall be deemed to have any obligations or liabilities to Tenant simply by virtue of its Mortgage.
ARTICLE 17
SECURITY DEPOSIT
17.1 Security Deposit . Simultaneously with its execution of this Lease, Tenant shall deliver the Security Deposit specified on the Summary Sheet to Landlord. The Security Deposit shall be held by Landlord to secure the performance of all of Tenants obligations and liabilities under this Lease. To the maximum extent permitted under Applicable Laws, Landlord may commingle the Security Deposit with its other funds. No interest shall be earned, paid, payable or owing to Tenant with respect to the Security Deposit, and Landlord may retain all interest and other amounts generated thereby. Landlord may, from time to time and without prejudicing any other remedy available under this Lease, at law or in equity, apply the Security Deposit to: (i) pay any past due Rent; (ii) reimburse Landlord for any damages, injuries, expenses or liabilities that it suffers or incurs as a result of Tenants default under this Lease; or (iii) cover the cost of curing any Event of Default. Following any application of the Security Deposit by Landlord, Tenant shall pay to Landlord, upon demand, the amount of the Security Deposit so applied in order to restore the Security Deposit to its original amount. Although the Security Deposit shall be deemed the property of Landlord, any remaining balance of the same shall be returned to Tenant within sixty (60) days after the later of the termination of this Lease or the date all of Tenants obligations and liabilities under this Lease are satisfied. Landlord shall assign the Security Deposit to any person or entity that acquires Landlords interest in the Premises, whereupon Landlord shall have no further liability or responsibility for its return to Tenant.
ARTICLE 18
NOTICES
All notices, consents, approvals and other communications (collectively, Notices) that may be or are required to be given by either Landlord or Tenant under this Lease shall be properly made only if in writing and sent to the address of Landlord or Tenant, as applicable, set forth in the Summary Sheet, as the same is modified in accordance herewith, by hand delivery, U.S. Certified Mail (Return Receipt Requested) or nationally recognized overnight delivery service. Either party may change its address for Notices by giving written notice to the other party in accordance with this provision. Notices shall be deemed received: (i) if sent by hand or overnight delivery service, on the date of delivery; and (ii) if sent by United States mail, on the date of deposit. The refusal to accept delivery shall constitute acceptance.
ARTICLE 19
MISCELLANEOUS
19.1 Relocation THIS PARAGRAPH HAS BEEN INTENTIONALLY STRUCK
19.2 Estoppel Certificates . Within ten (10) days after Landlords written request, Tenant shall execute, acknowledge and deliver to Landlord or its designee a written statement: (i) acknowledging that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as modified, is in full force and effect); (ii) setting forth the date to which the Base Rent has been paid; (iii) certifying there are not, to Tenants knowledge, any uncured defaults on the part of the Landlord under this Lease (or specifying any such defaults known to Tenant); and (iv) confirming any other facts related to the status of this Lease or the condition of the Premises, but only to the extent of Tenants knowledge thereof. Any such statement may be relied upon by a prospective purchaser or lender of Landlord. In addition to any other remedies available to Landlord, if Tenant fails to execute, acknowledge and deliver to Landlord any such statement in a timely manner, then all of the matters contained in such statement shall be deemed to be true.
19.3 Self-Help . In the event Tenant fails to perform any repairs, maintenance or replacements that it is required to make under this Lease, Landlord may (but shall not be obligated to) perform the same on behalf of Tenant, in which case Tenant shall reimburse Landlord, on written demand, for all costs incurred by Landlord in connection therewith, plus Tenant shall pay Landlord an administrative fee equal to fifteen percent (15%) of such costs.
19.4 Financial Statements. Upon request, Tenant shall furnish Landlord with a current financial statement for Tenant, prepared in accordance generally accepted accounting principles (consistently applied) and certified as true, correct and complete by Tenants chief financial officer or an independent certified public accountant; provided, if a audited financial statement for Tenant was prepared by an independent, certified public accountant, Tenant shall make such financial statement available to Landlord.
19.5 Landlord Liability . If Landlord defaults under this Lease, Tenant shall notify Landlord of such default, in writing, and Tenant shall not have any rights or remedies as a result of such default, unless Landlord fails to cure such default within thirty (30) days after its receipt of written notice of the same from Tenant; provided if any default by Landlord under this Lease cannot reasonably be cured within thirty (30) days, then Tenant shall not have any rights or remedies as a result of such default so long as Landlord commences to cure such default within thirty (30) days after it receives written notice of the same from Tenant and thereafter prosecutes the cure to completion with reasonable diligence.
Landlord shall not have any personal liability under this Lease. In the event Landlord defaults under this Lease and fails to cure the same within the period provided above, Tenant shall look solely to the Landlords interest in the Project for the satisfaction of Tenants rights and remedies. If Landlord sells, transfers or conveys the Project, Landlord shall be released from all liabilities and obligations accruing under this Lease from and after the date of the sale, transfer or conveyance. It is understood and agreed that the terms of this Lease shall be binding upon Landlord and its successors only with respect to periods during which they own the Premises. Tenant agrees to attorn to any person or entity that acquires Landlords interest in the Premises.
19.6 Hold Over . Unless Landlord expressly agrees otherwise, in writing, if Tenant remains in possession of the Premises after the expiration or earlier termination of this Lease, then Tenant shall be deemed a tenant at sufferance on all of the terms of this Lease, except (i) the Base Rent shall equal one hundred fifty percent (150%) of the Base Rent due during the month immediately preceding the expiration or termination hereof, and (ii) Tenant shall not have any right to renew this Lease, expand the Premises or exercise any option. The foregoing sentence shall in no event be construed to permit Tenant to remain in possession of the Premises after the expiration or termination of this Lease. Tenant shall be liable to Landlord for all losses, costs, damages and expenses (including, without limitation, consequential damages, reasonable attorneys fees, court costs and litigation expenses) that Landlord suffers or incurs because of any holding over by Tenant, and Tenant shall indemnify, defend and hold harmless Landlord from and against all claims, lawsuits, liabilities, losses, damages, costs and expenses (including, without limitation, reasonable attorneys fees, court costs and litigation expenses) arising from delays by Landlord in delivering possession of the Premises to any person or entity that are caused by Tenants failure to comply with the terms of this Lease, including, but not limited to, Tenants failure to timely surrender possession of the Premises to Landlord.
19.7 Quiet Enjoyment . Subject to Landlords rights and remedies under this Lease, Tenant shall peaceably and quietly hold and enjoy the Premises without hindrance or interruption by Landlord or anyone claiming by, through or under Landlord so long as Tenant complies with the terms hereof.
19.8 Force Majeure . In the event compliance with any of Landlords or Tenants obligations under this Lease is impractical or impossible due to any Event of Force Majeure, then the time for performance of such obligations shall be extended for a period equivalent to the duration of the Event of Force Majeure; provided, however, the provisions of this section shall not operate to (i) extend the Commencement Date, (ii) excuse, extend or abate Tenants obligation to pay Rent and other sums that it owes hereunder, or (ii) excuse Tenants inability to perform its obligations hereunder because of inadequate finances.
19.9 Joint & Several Liability . If Landlord or Tenant is made up of more than one (1) party, then all of the parties comprising Landlord or Tenant, as applicable, shall be jointly and severally liable hereunder.
19.10 Attorneys Fees . If any legal proceeding is commenced related to this Lease, the prevailing party in such legal proceeding shall be entitled to recover its reasonable attorneys fees, court costs and litigation expenses from the non-prevailing party therein.
19.11 Brokers . Landlord shall be responsible for the payment of any commissions due to the Landlords and Tenants brokers identified on the Summary Sheet pursuant to a separate agreement. Landlord and Tenant (i) each represents and warrants to the other that it has not dealt with any other broker, finder or listing agent in connection with this Lease other than the brokers identified on the Summary Sheet, and (ii) agrees to indemnify, defend and hold harmless the other party from and against all claims, lawsuits, liabilities, damages, costs and expenses (including, without limitation, reasonable attorneys fees, court costs and litigation expenses) arising or resulting from any demand for a commission or other compensation made by a broker, finder or listing agent with whom the indemnifying party has dealt or allegedly dealt.
19.12 No Waiver . No waiver by Landlord or Tenant of any provision of or default under this Lease shall be deemed to have been made, unless the same is in writing and signed by the party charged with making the waiver, and no waiver of any provision of or default under this Lease shall be deemed a waiver of any other provision or default. Landlords or Tenants consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlords or Tenants consent to or approval of any subsequent act.
19.13 Submission . The submission of this Lease does not constitute an offer, and this document shall become effective and binding only upon the execution and delivery hereof by both Landlord and Tenant. Copies of this Lease that have not been executed and delivered by both Landlord and Tenant shall not serve as a memorandum or other writing evidencing an agreement between the parties.
19.14 Successors and Assigns . This Lease shall be binding on the Landlord, Tenant and their respective heirs, successors, executors, administrators and assigns; provided the foregoing shall not be construed to permit any assignment of this Lease by Tenant.
19.15 Severability . If any provision of this Lease is found by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remainder of this Lease will not be affected, and in lieu of each provision that is found to be illegal, invalid or unenforceable, a provision will be added as a part of this Lease that is as similar to the illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
19.16 Entire Agreement . This Lease constitutes the entire agreement between the parties with respect to the Premises, and all prior negotiations and understandings shall be deemed incorporated herein. This Lease may only be amended or modified by a written instrument signed by both Landlord and Tenant.
19.17 Exhibits . Landlord and Tenant acknowledge and agree that all schedules, addendum and exhibits referenced in this Lease are attached hereto and incorporated herein.
19.18 Accord and Satisfaction . Neither the acceptance by a party of a lesser sum than it is due under this Lease, nor any statement on a check or instrument accompanying payment, nor acceptance of Rent shall be deemed an accord and satisfaction, and either party may accept any check or payment without prejudicing such partys right to recover all outstanding amounts due under this Lease and pursue all remedies available hereunder or at law or in equity.
19.19 Relationship . The relationship of Landlord and Tenant is solely that of independent third parties engaged in an arms length transaction. Nothing contained in this Lease shall be deemed or constructed as creating a partnership, joint venture, agency relationship or other similar relationship between Landlord and Tenant.
19.20 Survival . All of Tenants indemnification obligations and, to the extent not fully performed, all other obligations of Tenant under this Lease, shall survive the expiration or termination hereof.
19.21 Recording . Tenant shall not record this Lease or any memorandum hereof.
19.22 Waiver of Jury Trial . LANDLORD AND TENANT HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY AND ALL CLAIMS ARISING OUT OF, IN CONNECTION WITH OR RELATED TO THIS LEASE, THE PREMISES, THE PROJECT OR THE COMMON AREA, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. LANDLORD AND TENANT AGREE THAT SUCH CLAIMS SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH THE COURT AS WRITTEN EVIDENCE OF LANDLORDS AND TENANTS WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
19.23 Governing Law . This Lease shall be governed by the laws of the State of Tennessee. The parties hereby agree that any suit, action or proceeding related to this Lease, the Premises, or the Project shall be brought in the federal courts serving Brentwood, Tennessee. The parties hereby consent to such courts having in personam jurisdiction and irrevocably waive any objections they may have to the jurisdiction of such court.
IN WITNESS WHEREOF, the parties have executed and delivered this Lease as of the date first written above.
OWNER: | LESSEE: | |||||
UCM/PROVENTURE-SYNERGY BUSINESS PARK, LLC | FRANKLIN SYNERGY BANK | |||||
A Delaware limited liability company | A Tennessee state chartered bank | |||||
By: | SBPNMM, LLC | |||||
a Delaware limited liability company | ||||||
its Non-Member Manager |
By: |
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By: |
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Mark B. Greco | Print Name: |
Lisa Musgrove |
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Vice President | Title: |
EVP, CFO |
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Date: |
10/17/08 |
Date: |
10/10/08 |
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Signed and sealed in the presence of: | Signed and sealed in the presence of: | |||||||
(1) |
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(1) |
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Print Name: |
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Print Name: |
Mandy Garland |
EXHIBIT A
FLOOR PLAN OF PREMISES
EXHIBIT B
SITE PLAN OF PROJECT AND BUILDING
EXHIBIT C
CONSTRUCTION
Landlord to construct the Premises per the attached Exhibit A at Landlords cost. The renovations will include new carpet, paint, and ceiling for the Premises. Tenant to select paint color and carpet from building standard finishes.
Tenant shall be responsible for any low voltage installations that may be needed for specific phone and computer use.
EXHIBIT D
OPERATING EXPENSES
Operating Expenses means all costs and expenses incurred by Landlord in connection with the ownership, operation, management, maintenance, repair, replacement and equipping of the Project. Without limiting the generality of the foregoing, Operating Expenses shall include the cost of: (i) utilities; (ii) supplies and tools; (iii) operating, maintaining, repairing, and replacing the Common Areas; (iv) maintaining, repairing, resurfacing, repaving, re-striping, lighting, and cleaning the parking areas; (v) real property taxes, personal property taxes, impact fees and assessments (general and special, public and private), excluding general income, sales, estate, succession, transfer, gift, inheritance, franchise and excise taxes; (vi) insurance maintained by or on behalf of Landlord, including, but not limited to, public liability, rental loss, property damage, earthquake, flood, pollution, mold, terrorism and property insurance, in such amounts and on such terms as Landlord deems appropriate; (vii) market management fees, whether Landlord or an independent third party is acting as manager; (viii) the fair rental value of any on- site property managers office; (ix) installing, renting and maintaining signs; (x) maintaining, repairing and replacing utility systems, heating, ventilation and air conditioning systems, mechanical systems, and storm water management systems, (xi) maintaining, repairing and replacing the roofs; (xii) complying with Applicable Laws; (xiii) licenses, certificates, permits and inspections; (xiv) compensating personnel who perform duties related to the Project, including, without limitation, salaries, benefits and payroll taxes; (xv) reasonable reserves covering replacement of heating, ventilating and air conditioning equipment, roofs, paving and other capital items; (xvi) amounts not covered by insurance (provided if Landlord incurs an expense for which a reserve is held, Landlord shall apply such reserve to cover the expense and only the portion of the expense not covered by the reserve may be included in Operating Expenses); (xvi) services that Landlord furnishes generally to tenants; (xvii) rental charges for machinery and equipment; (xviii) accounting, legal and other consultant fees; (xix) landscaping; (xx) snow and ice removal; (xxi) payments under any easement, license, operating agreement, declaration, restrictive covenant, ground lease (excluding rent), or other instrument encumbering the Project; (xxii) costs incurred by Landlord to contest any taxes, impact fees, assessments or other governmental requirements that would otherwise increase the cost of operating the Project, (xxiii) janitorial service, alarm and security service, window cleaning, and trash removal to the extent provided by Landlord. For purposes hereof, any capital expenditure includable in Operating Expenses shall be amortized over the useful life of the item in question and only the portion thereof attributable to the current year shall be included in the Operating Expenses for such year.
Operating Expenses shall exclude the following:
Costs that according to GAAP would be considered capital costs or are otherwise outside normal costs and expenses incurred in connection with the operation and maintenance of similar buildings. Reserve for repairs, maintenance or replacements. Marketing, legal fees, leasing commissions, accounting fees and other professional fees relating to other tenants in the Building. Ground lease rental payments or the leasing activities for the Building or Project. Costs incurred by Landlord for the repair of damage to the Building, to the extent that Landlord is reimbursed by insurance proceeds, and the costs of all capital repairs, regardless of whether such repairs are covered by insurance. Costs incurred in connection with the installation of improvements for other tenants or occupants, or incurred in renovating or otherwise improving vacant space for other tenants of occupants of the Building. Costs incurred in connection with any environmental clean-up, response action or remediation on, in, under or about the Building. Costs incurred in connection with upgrading the Building to comply with all applicable codes, ordinances, statutes or other laws in effect prior to the Commencement Date, including, but not limited to, ADA compliance costs.
EXHIBIT E
RULES AND REGULATIONS
1. The Lessor or Manager may refuse admission to any Building outside of Lessors Standard Building hours to any person not known to any watchman or security guard or not properly identified, and may require all persons admitted to or leaving any Building outside of Lessors Standard Building hours to register. Any person whose presence in any Building or the Center at any time shall, in the judgement of the Lessor or Manager, be prejudicial to the safety, character, reputation and interests of any Building or its Lessees may be denied access to any Building or may be ejected therefrom. In case of invasion, riot, public excitement or other commotion, the Lessor or Manager may prevent all access to any Building during the continuance of the same, by closing the doors or otherwise, for the safety of the Lessees, any Building and protection of property in any Building. The Lessor or Manager shall not be liable to any Lessee for damages or loss arising from the admission, exclusion or ejection of any person to or from any Lessees Premises or any Building under these Rules and Regulations.
2. The Lessor or Manager reserves the right to exclude or expel from any Building any person who in the judgement of the Lessor or Manager is intoxicated or under the influence of liquor or drugs.
3. Lessees shall not do or permit anything to be done in their Premises or bring or keep anything therein which will in anyway obstruct or interfere with the rights of other Lessees, or do, or permit anything to be done in their Premises which shall, in the judgement of the Lessor or Manager, in any other way injure or annoy other Lessees, or conflict with the laws, rules and regulations relating to fire, safety or health or with any insurance policy of Lessor upon any Building or the Center or any part thereof or any contents therein or conflict with any of the Rules and Ordinances of the public building or health authorities.
4. All electrical equipment used by the Lessee shall be U.L. approved. Lessee shall not do, or permit to be done in the Lessees Premises or the Center, and Lessee shall not bring into or keep in the Premises or the Center anything which would impair or interfere with any Building services or the Center and the economical heating, cooling, cleaning or other servicing of any Building or the Premises.
5. Lessees shall not install or operate any steam or gas engine or boiler, or carry on any mechanical business, in any Building. The use of oil, gas or inflammable liquids for heating, lighting or any other purpose is expressly prohibited. Explosives or other articles deemed hazardous shall not be brought into any Building or the Center. T HE L ESSEE SHALL NOT USE ANY OTHER METHOD OF HEATING OTHER THAN THAT SUPPLIED BY THE L ESSOR OR M ANAGER .
6. Lessees shall give the Lessor or Manager prompt notice of all accidents to or defects in air conditioning equipment, plumbing, electric facilities, or any part or appurtenance of their Premises.
7. Lessees shall use electric, gas and other forms of energy only from such source of supply as is furnished by Lessor or Manager in any Building occupied by such Lessee.
8. Furniture, equipment or supplies shall be moved in or out of any Building only upon the elevator designated by the Lessor or Manager and then only during such hours and in such manner as may be prescribed by the Lessor or Manager.
9. Should any Lessee desire to place in any Building any equipment which exceeds Lessors standard floor loads, including, but not limited to, large files, safes and electronic data processing equipment, it shall first obtain written approval of the Lessor or Manager to place such items within any Building or to use any Building elevators, and the proposed location in which such equipment is to be installed. The Lessor or Manager shall have the right to prescribe the weight and position of any equipment that may exceed the weight load limits of any Building, and may further require, at the Lessees expense, the reinforcement of any flooring on which such equipment may be placed, and/or to have an engineering study performed to determine such weight and position of equipment, to determine added reinforcement required, and/or determine whether or not such equipment can be safely placed within any Building.
10. Lessees shall not place additional locks or bolts of any kind upon any of the doors of their Premises or the Building and no lock on any door therein shall be changed or altered in any respect. Duplicate keys for the Lessees Premises shall be procured only from the Lessor or Manager, which may make a reasonable charge therefor. Upon termination of a Lessees lease, all keys of the Premises shall be delivered to the Lessor or Manager.
11. Lessees shall not leave any refuse in the common areas or other areas of any Building or the Center (excepting the Lessees own Premises) for disposal.
12. The Lessor or Manager shall have the right to prohibit any advertising by Lessees which, in the Lessors or Managers opinion, tends to impair the reputation of the Center or any Building or its desirability as a building or offices; upon written notice from the Lessor or Manager, the Lessee shall refrain from or discontinue such advertising.
13. If a Lessee employs laborers or other persons to be employed outside of any Building, such Lessee shall not have such employees paid in any Building, but shall arrange to pay their payrolls elsewhere. Lessees shall not advertise for laborers giving an address at any Building.
14. Bicycles or other vehicles shall not be permitted in the offices, common areas, halls, corridors, lobbies and elevators of any Building, nor shall any obstruction of sidewalks or entrances of any Building by such be permitted.
15. The sidewalks, entries, passages, elevators and staircases shall not be obstructed or used by Lessees, their agents, employees, contractors and invitees for any other purpose than ingress and egress to and from the respective offices.
16. Canvassing, soliciting and peddling in any Building or the Center is prohibited and Lessees shall cooperate to prevent the same.
17. No animals, birds, pets (other than seeing-eye dogs) of any kind shall be allowed in the Lessees Premises or any Building.
18. The water closets, urinals, waste lines, vents or flues of any Building shall not be used for any purpose other than those for which they were constructed, and no rubbish, acids, vapors, newspapers or other such substances of any kind shall be discarded therein. The expense caused by any breakage, stoppage or damage resulting from a violation of this rule by any Lessee, its agents, employees, contractors and invitees or licensees, shall be paid by the Lessee.
19. All decorating, carpentry work, or any labor required for the installation of the Lessees equipment, furnishings or other property shall be performed at the Lessees expense, subject to the Lessors or Managers prior written approval and , by the Lessors or Managers employees or at the Lessors or Managers option and consent, by persons and contractors authorized in writing by the Lessor or Manager. This shall apply to all work including but not limited to, installation of telephone or telegraph equipment or any other physical feature of any Building. None of this work shall be done by Lessee without the Lessors or Managers prior written approval.
20. If any Lessee desires radio signal, communication, alarm or other utility or service connection installed or changed, such work shall be done at the expense of the Lessee, with the prior written approval and under the direction of the Lessor or Manager. No wiring shall be installed in any part of any Building without the Lessors or Managers approval and direction. The Lessor or Manager reserves the right to disconnect any radio, signal or alarm system when, in the Lessors or Managers opinion, such installation or apparatus interferes with the proper operation of the Center of any Building or systems within any Building.
21. Except as permitted by the Lessor or Manager, Lessee shall not mark upon, paint signs upon, cut, drill into, drive nails or screws into, or in any way penetrate or deface the wails (ordinary wall art excluded), ceilings, partitions or floors of their Premises or of any Building and the repair costs of any defacement damage or injury caused by any Lessee, its agents, employees, contractors and invitees, shall be paid for by the Lessee.
22. All glass, lighting fixtures, locks and trimmings in or upon the doors and windows of the Lessees Premises shall be kept whole and whenever any part thereof shall be broken through cause attributable to any Lessee, its agents, employees, contractors and invitees, Lessee shall promptly notify Lessor verbally and in writing and Lessor or Manager shall replace or repair such item at Lessees expense within a reasonable period of time following receipt of such notice.
23. The cost of repairing any damage to the common areas or public portions of any Building or the Center or the public facilities or to any facilities used in common with other Lessees in the Building or Center, caused by any Lessee or the agents, employees, contractors and invitees of the Lessee, shall be paid by such Lessee.
24. Lessees shall not remove any carpet, or wall coverings, window blinds, or window draperies in their Premises without the prior written approval of the Lessor or Manager.
25. The sashes, sash doors, windows, side glass, glass doors and any lights or skylights that reflect or admit light into the hall or other places of any Building shall not be covered or obstructed by Lessee without the prior written approval of the Lessor or Manager.
26. The Lessee shall cooperate fully with the life safety plans of any Building as established and administered by the Lessor or Manager. This includes participation by the Lessee and employees of the Lessee in exit drills, fire inspections, life safety orientations and other programs relating to life safety that may be promulgated by the Lessor or Manager.
27. Lessor reserves the right to amend these Rules and Regulations from time to time.
EXHIBIT F
TERM CERTIFICATION
The undersigned, as Tenant, under that certain Lease Agreement dated (the Lease) with , as landlord, hereby certifies as follows:
1. The undersigned has accepted and is in occupancy of the premises described in the Lease (the Premises).
2. The Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way except as follows: .
3. The Commencement Date of the Lease is , 200 .
4. The Expiration Date of the Lease is , 200 .
5. All improvements and work required under the Lease to be made by Landlord, if any, have been completed to the satisfaction of Tenant, except as follows: . All contributions, allowances or reimbursements that Landlord is required to make to Tenant on account of work or improvements to the Premises have been paid in full, except as follows: .
6. Neither Landlord nor Tenant is in default under the Lease, and Tenant has defenses to its obligations under the Lease nor any offsets to the amounts it owes under the Lease.
IN WITNESS WHEREOF, Tenant has executed this Term Certification on , 200 .
TENANT: Franklin Synergy Bank | ||
A Tennessee state chartered bank | ||
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By: |
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Its: |
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ADDENDUM #1
RENEWAL OPTION(S)
Subject to the other terms hereof, Landlord grants Tenant the Renewal Options set forth in the Summary Sheet, if any; provided Tenants right to exercise any Renewal Option is conditioned on there being no Event of Default at the time Tenant exercises the Renewal Option and at the start of the extension of the Term resulting from the exercise of the Renewal Option. If such conditions are not satisfied, Landlord may, at its option and without limiting Landlords other rights and remedies, nullify Tenants exercise of the Renewal Option, in which event no extension of the term of this Lease shall result therefrom. In order to exercise any Renewal Option, Tenant must provide Landlord written notice that it is exercising the same at least one hundred eighty (180) days prior to the date the Term is then set to expire.
Any extension of the Term resulting from Tenants exercise of a Renewal Option (a Renewal Period) shall be on all of the terms and conditions contained in this Lease, except that the Monthly Base Rent during the Renewal Period shall be the then Standard Rental Rate (as hereinafter defined) and Tenant shall not be entitled to any free rent periods, improvement allowances, additional renewal options or expansion rights, concessions or other inducements. Landlord shall give Tenant written notice of the then Standard Rental Rate promptly following Tenants exercise of a Renewal Option. The Standard Rental Rate shall be (i) the monthly base rental rate for the Premises as of the commencement of the Renewal Period, as determined by Landlord based upon the base rents then being quoted by Landlord for new leases and lease renewals of similar space in the Building , taking into account location, lease terms, and other factors Landlord reasonably deems relevant, plus (ii) market rental rate increases. In no event shall the Standard Rental Rate be less than the Monthly Base Rent in effect immediately prior to the start of the Renewal Period in question. The Standard Rental Rate shall also include market increases in the Monthly Base Rent during the Renewal Period. If Tenant does not accept the Standard Rental Rate set forth in Landlords notice, Tenant shall have the right to revoke its exercise of the applicable Renewal Option by giving written notice to Landlord within fifteen (15) days after Tenant is first notified of the Standard Rental Rate, in which event this Lease shall expire at the expiration of the then current term. If Tenant does not timely notify Landlord, in writing, that it is not accepting the Standard Rental Rate, then Tenant shall be deemed to have approved the same.
EXHIBIT F
TERM CERTIFICATION
The undersigned, as Tenant, under that certain Lease Agreement dated October 8, 2008 the Lease) with UCM/Proventure-Synergy Business Park, LLC , as landlord, hereby certifies as follows:
1. The undersigned has accepted and is in occupancy of the premises described in the Lease (the Premises).
2. The Lease is in full force and effect and has not been assigned, modified, supplemented or amended in any way.
3. The Commencement Date of the Lease is November 15, 2008 .
4. The Expiration Date of the Lease is November 30, 2013 .
5. All improvements and work required under the Lease to be made by Landlord, if any, have been completed to the satisfaction of Tenant. All contributions, allowances or reimbursements that Landlord is required to make to Tenant on account of work or improvements to the Premises have been paid in full.
6. Neither Landlord nor Tenant is in default under the Lease, and Tenant has defenses to its obligations under the Lease nor any offsets to the amounts it owes under the Lease.
IN WITNESS WHEREOF, Tenant has executed this Term Certification on December 2, 2008.
TENANT: | ||
FRANKLIN SYNERGY BANK | ||
Lisa Musgrove |
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By: |
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Its: |
EVP, CFO |
Exhibit 10.13
LEASE AMENDMENT NUMBER ONE
THIS LEASE AMENDMENT NUMBER ONE this (Amendment) is dated as of June 11, 2013 and entered into by and between Mooreland Investors, LP, successor in interest to UCM/Proventure-Synergy Business Park, L.LC (Landlord) and Franklin Synergy Bank . (Tenant) with its principal office at 722 Columbia Ave Franklin, TN 37064. Tenant and Landlord, or Landlords predecessor in interest, executed a Lease dated October 8, 2008 (the Lease). Tenant and Landlord desire to alter and modify the Lease for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Lease is amended as follows
1. Expiration Date. November 30, 2014
2. Monthly Base Rent . Effective December 1, 2013, the Monthly Base Rent shall be as outlined in the rent schedule below:
Monthly Base Rent Schedule |
Monthly Base Rent | |||
December 1, 2013 through November 30, 2014 |
$ | 7,054.42 |
3. Condition of the Premises . Tenant shall accept the Premises in their as is condition. Any modifications or renovations to the Premises will be at Tenants sole cost.
4. Operating Expenses: Tenants 2008 Base Year will remain unchanged and Tenant will continue to pay the current monthly estimate for operating expenses of $216.00/mo in addition to the Base Rent amount outlined above.
Except as specifically amended and modified by this Amendment, the parties hereby ratify and confirm that all other terms of the Lease are and shall remain in full force and effect Capitalized terms used herein and not otherwise defined shall have the respective meanings assigned thereto in the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be executed this Amendment on the dates shown below their signatures to be effective as of the date set forth above.
LANDLORD: | TENANT: | |||||||
MOORELAND INVESTORS, LP | Franklin Synergy Bank | |||||||
A Tennessee state chartered bank | ||||||||
A Tennessee limited partnership | ||||||||
By: |
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By: | BNM Corporation | Print Name: |
Kevin Herrington |
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its General Partner | Title: |
SVP, COO |
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Date: |
6/11/13 |
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By: |
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Its: |
Manager |
Exhibit 10.14
Suites 106, 107 and 108
OFFICE LEASE AGREEMENT
Aspen Brook Village
3301 Aspen Grove Drive
Cool Springs, Tennessee
Franklin Financial Network, Inc. Tenant
Bank Branch
PCC Investments II, LLC - Landlord
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the Lease) made and entered into as of May 11, 2007, by and between PCC Investments II, LLC, a Tennessee Limited Liability Company (Landlord), and Franklin Financial Network, Inc., a Tennessee corporation (Tenant).
WITNESSETH:
1. Demise of Premises . Landlord hereby demises the Premises, Suites 106, 107 and 108 to Tenant and covenants that Tenant shall peaceably and quietly hold and enjoy the Premises throughout the initial term set forth in Section (a) hereof, and any extension thereof as permitted under Section 29 hereof (the Term), from all persons claiming through Landlord, on and subject to all the provisions and conditions of this Lease; and Tenant hereby accepts such demise of the Premises from Landlord.
The Premises consist of the space containing 4,524 rentable square feet located in the building known as Aspen Brook Village (the Building) on a tract of land located at 3301 Aspen Grove Drive, Franklin, Tennessee, as shown on Exhibit A attached hereto. The Premises, Building and adjacent grounds located on such tract of land are hereinafter called the Property. Common Areas shall mean those areas of the Building and such adjacent grounds which are shared by all tenants of the Building. The Common Area Factor is 19%, or 860 SF.
2. Term .
(a) The initial term of this Lease shall begin on May 15, 2007 and expire on the seventh anniversary of the Rent Commencement Date (as defined in Section 3(a) hereof), and the rent payments hereunder shall commence on such Rent Commencement Date. Tenant may begin the occupancy of the Premises upon the issuance of a certificate of occupancy by the appropriate local governmental authority and after substantial completion of the Tenant Improvements to be constructed by Tenant pursuant to the Work Letter attached hereto as Exhibit B .
(b) Promptly upon the commencement of the initial term of this Lease, the parties hereto shall execute a Commencement Date Certificate in form mutually acceptable to them setting forth, among other things, the commencement date of such term.
3. Rent . Throughout the term of this Lease, Tenant shall pay rent to Landlord in accordance with the following provisions:
(a) Tenant shall pay annual base rent (the Base Rent) in monthly installments in advance on or before the first day of each calendar month commencing the earlier of September 15, 2007 or the date of Substantial Completion, as defined in Exhibit B attached hereto (the Rent Commencement Date). If rent payments begin on a day other than the first day of a calendar month or the Term ends on a day other than the last day of a calendar month, then the monthly rent due hereunder for such calendar month will be appropriately prorated based on the actual number of calendar days in such
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calendar month and the rent for such month will be paid on or before the first day of the following calendar month. The monthly installments payable during the initial term of this Lease are set forth in Exhibit C hereto.
(b) Additional Rent (herein so called) shall be calculated as provided in Exhibit D hereto, subject to Section 29 hereof. For each calendar year after the year in which the Commencement Date occurs, Landlord shall furnish Tenant a written estimate of Additional Rent for the applicable calendar year. Estimates of Additional Rent shall be made by Landlord on a reasonable basis determined by Landlord. For the calendar year 2007, Landlord estimates that the Additional Rent will be $4.00 a square foot for the Premises. Throughout the Term of this Lease, Tenant shall pay estimated Additional Rent in advance on or before the first day of each month in monthly installments equal to one-twelfth (1/12) of the estimated Additional Rent for the applicable calendar year. Pending receipt of Landlords written estimate of Additional Rent for any calendar year, monthly installments of estimated Additional Rent shall continue to be paid in the same amount as in the prior calendar year. By April 30 of each calendar year, Landlord shall deliver to Tenant a written statement reflecting any difference between estimated Additional Rent paid and actual Additional Rent accrued for the prior calendar year (or, in the case of any partial calendar year in which the Term begins or ends, a prorated portion of such Additional Rent based upon actual days elapsed during that portion of the Term occurring in that calendar year). Tenant shall pay Landlord the total amount of any balance of Additional Rent due shown on such annual statement within thirty (30) days after receipt of the statement; provided, however, the total amount of actual Additional Rent due and payable by Tenant for each calendar year shall not exceed 104% of the total actual Additional Rent due and payable for the then previous calendar year (or, if either such calendar year or the then prior calendar year is a partial calendar year, the average daily actual Additional Rent due and payable for such calendar year shall not exceed 104% of the average daily actual Additional Rent due and payable for such previous calendar year). Landlord shall refund any overpayment of Additional Rent by Tenant shown on such annual statement within thirty (30) days after delivery of the statement. Tenant may examine the accounting records supporting the amount of Additional Rent reflected on such annual statement within a sixty (60) day period after receipt of the statement, such examination to occur after reasonable advance written notice to Landlord during normal business hours at the place where Landlords accounting records are normally kept.
(c) The installments of Base Rent and Additional Rent for any initial partial calendar month shall be prorated based on actual days elapsed and shall be paid in advance on the Commencement Date.
(d) Except as expressly provided to the contrary in this Lease, Installments of Base Rent and Additional Rent shall be payable without notice, demand, reduction, setoff, or other defense. Installments of Base Rent and Additional Rent and payment of other sums owing to Landlord pursuant to this Lease shall be made to Landlord at the address specified on the signature page, or at whatever other account or address that Landlord may designate from time to time by written notice to Tenant.
(e) If any installment of Base Rent or Additional Rent, or any other sum due and payable pursuant to this Lease, remains unpaid for more than fifteen (15) days after
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the date due, Tenant shall pay Landlord a late payment charge equal to the greater of (i) Fifty and no/100 Dollars ($50.00), or (ii) five percent (5%) of the unpaid installment or other payment. The late payment charge is intended to compensate Landlord for administrative expenses associated with responding to late payment, and shall not be considered liquidated damages or interest.
(f) If any check tendered by or on behalf of Tenant in Payment of any sum due under this Lease is dishonored and returned to Landlord for any reason whatsoever, Tenant shall be charged the sum of Forty Dollars ($40.00) for each such check, which amount shall be payable as Rent, to defray the expense of handling, processing and bookkeeping. Any such check shall be promptly replaced by Tenant with a check that is the direct obligation of a bank or savings and loan institution (certified check, or other check representing immediately available funds). The amount of such replacement check shall be in the aggregate amount of the payment tendered, plus the Forty Dollars ($40.00) check charge, and any applicable sales and other tax. If not paid by Tenant within ten (10) days after notification to tenant of the dishonored check, said Forty Dollars ($40.00) charge shall also be subject to said late charges. In the event two (2) or more checks tendered by or on behalf of Tenant are dishonored and returned to Landlord for any reason whatsoever during any twelve (12) month period, all future payments by Tenant to Landlord shall me made with checks that are the direct obligation of a bank or savings and loan institution (certified check or other check representing immediately available funds).
(g) Landlord shall not be bound by any notation on any check or letter, such as paid in Full.
4. Use of Premises; Compliance with Legal Requirements . Tenant shall use the Premises only for a bank branch office and for no other purposes. Tenant shall not commit or allow waste to be committed in the Premises or elsewhere on the Property, and shall not do or allow to be done in the Premises or elsewhere on the Property anything that shall constitute a nuisance or detract in any way from the reputation of the Property as a first-class real estate development. Tenant shall allow no noxious or offensive odors, fumes, gases, smoke, dust, steam or vapors, or any loud or disturbing noise or vibrations to originate in or be emitted from the Premises. Tenant shall comply with all laws, ordinances, and regulations of any governmental authority relating to Tenants use or occupancy of the Premises, with the requirements of insurance underwriters or rating bureaus applicable to the Property, and with the following requirements:
(a) No portion of the Premises or the Property shall be used or occupied for anything that is extra hazardous on account of fire or other risks, that causes an increase in the premiums payable by Landlord for any of its insurance with respect to the Property, or that causes any underwriter to deny insurance coverage to Landlord.
(b) Tenant shall comply with all requirements of the Americans with Disabilities Act and implementing regulations with respect to improvements made by Tenant within the Premises, and its use and occupancy of the Premises.
(c) Tenant may use generally available office equipment and supplies of a type which are customary for the purpose for which Tenant shall occupy the Premises
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that contain small quantities or low concentrations of Hazardous Materials so long as they are properly used and stored within the Premises, properly disposed of by Tenant at a location other than the Property, and do not require any governmental license or permit. Except as permitted in the preceding sentence, no use, generation, storage, treatment, transportation, or disposal of any Hazardous Material shall occur or be permitted to occur in connection with Tenants use and occupancy of the Premises or any other portion of the Property. Hazardous Material shall mean any toxic or hazardous waste, material, or substance or any other substance that is prohibited, limited, or regulated as a health or environmental hazard by any governmental or quasi-governmental authority, or that even if not so regulated, could or does pose a hazard to the environment or to health and safety of the occupants of the Building or others.
(d) Landlord shall have the right to prescribe and modify reasonable rules for use of the Property and leased premises within the Building. A copy of Landlords current Building rules is attached hereto as Exhibit E . In the event of any conflict with the Building rules, the provisions in the main body of this Lease control.
(e) Tenant shall ensure that its agents, employees, and contractors comply with this Paragraph, and shall use reasonable efforts to ensure that its invitees and customers comply with this Paragraph.
(f) Tenant and Landlord shall execute and deliver, on and as of the date hereof, the Lease Authorization, in the form set forth on Exhibit F hereto.
5. Taxes Payable by Tenant . Tenant shall pay any documentary stamp tax, sales or use tax, excise tax, or any other tax, assessment, or charge (other than any income, franchise, or similar tax imposed directly on Landlord or Landlords net income from the Property) required to be paid on account of (a) the use or occupancy of the Premises by Tenant, (b) the rent or other payments due hereunder, or (c) Tenants trade fixtures, equipment, machinery, inventory, merchandise or other personal property located on the Premises and owned by or in the custody of Tenant. All such taxes, assessments, and charges shall be paid promptly as they become due prior to delinquency. If requested by Landlord, Tenant shall provide Landlord with copies of paid receipts for such taxes, assessments, or charges promptly after payment of same. Tenant shall also pay on written demand from Landlord any increase in ad valorem taxes or assessments on the Property as a result of alterations, additions, or improvements made by or on behalf of Tenant other than the initial Tenant Improvements.
6. Insurance Coverage; Waiver of Subrogation .
(a) Landlord shall maintain property and casualty insurance on the Building, with extended coverage or such other additional coverage as Landlord shall elect, in an amount of not less than eighty percent (80%) of the replacement cost of the Building; provided, however, if the premium for any insurance carried by Landlord with respect to the Property increases as the result of Tenants use or occupancy or as the result of any act or omission of Tenant or its agents, employees, or contractors, Tenant shall pay Landlord the amount of any such increase on written demand. Payment of such increased premiums shall not excuse any noncompliance with this Lease by Tenant that may have caused the increased premiums.
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(b) Tenant shall maintain and pay for property and casualty insurance with extended coverage on all trade fixtures, equipment, machinery, merchandise, or otherwise on the Property. Tenant shall maintain and pay for commercial general liability insurance (occurrence coverage) in the amount of not less than $1,000,000.00, with a company licensed to do business in the state in which the Property is located and reasonable acceptable to Landlord, naming Landlord as an additional insured, to the extent of liability assumed under Indemnification clause Article 22 of this lease, providing contractual liability coverage, and containing an undertaking by the insurer not to cancel or change coverage materially without first giving thirty (30) days written notice to Landlord. Tenant shall furnish Landlord certificates of insurance evidencing the required commercial general liability insurance coverage prior to the Commencement Date and thereafter prior to each policy renewal date.
(c) Each of Landlord and Tenant hereby waives all claims or other rights of recovery against the other and its agents, employees, and contractors for any loss or damage to the Premises or other portions of the Property, or to any personal property or fixtures thereon, by reason of fire or other insurable risk of loss (whether or not actually insured), regardless of cause or origin, including negligence, gross negligence, or misconduct of the other party or its agents, employees, or contractors, and covenants that no insurer shall hold any right of subrogation against such other party. Landlord and Tenant shall each advise its insurers of the foregoing waiver and such waiver shall be a part of the respective policies of property and casualty insurance maintained by Landlord and Tenant.
7. Services Furnished by Landlord . So long as Tenant is entitled to possession of the Premises during the Term, Landlord shall furnish the following services, which shall be reasonably consistent in quality with similar landlord services at comparable office buildings in the same market area as the Building:
(a) Heating and air conditioning in season to provided reasonably comfortable temperatures in the Common Areas (unless mandated otherwise by law) Monday through Friday from 7:00 a.m. to 6:00 p.m. and Saturdays from 8:00 a.m. to 2:00 p.m., exclusive of holidays observed by national banks in the city in which the Property is located.
(b) Reasonable janitorial and general cleaning services for the Common Area from Monday through Friday, exclusive of holidays observed by national banks in the city in which the Property is located.
(c) Electricity for routine lighting and the operation of the Common Areas.
(d) Passenger elevator service to all floors of the Building. Tenants move (and any significant moving) shall occur outside normal business hours.
(e) Reasonable amounts of cold running water to tenant spaces in or appurtenant to the Premises.
(f) Routine maintenance and repair of the structure of the Building and general Building mechanical, electrical, and plumbing systems and exterior lighting, landscaping, and irrigation, and parking, driveways, and sidewalks of the Property.
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Tenant is responsible for all interior maintenance and repair of the Premises, including, without limitation, all interior items, plumbing, HVAC, windows and door located on the Premises. If the Premises or any other part of the Property is damaged by any act or omission of Tenant or its agents, employees, or contractors, then Landlord may repair such damage. Any cost of such repairs to the Premises in excess of insurance proceeds actually received by Landlord shall be paid by Tenant to Landlord on written demand, and Landlord shall not be obligated to begin or continue repair work until funds for such purposes are received from insurance proceeds or from Tenant.
(g) If and to the extent Landlord chooses, security services and equipment for the Common Areas. Landlord has no duty to provide security, and no duty to so shall be deemed to have been assumed by Landlords furnishing and security services or equipment. Tenant waives and releases all claims against Landlord and its agents, employees, and contractors to the extent based on any wrongful, negligent, or other failure to furnish security services or equipment or on any wrongful, negligent, or other act or omission in connection with any security services or equipment furnished.
(h) Keys to the Premises, however, Tenant will be charged for additional keys provided throughout the Lease Term.
Tenant shall not be deemed to have been evicted as the result of, nor shall Landlord be liable for any loss or damage to the property of Tenant located in the Premises or for any loss of business or profits of Tenant or other damages of any kind arising from (i) any failure of Landlord to provide any of the services to be furnished by Landlord pursuant to this Paragraph as the result of circumstances outside of Landlords reasonable control, (ii) any interruption or unavailability of utilities or any stoppage, leaking, bursting, or other defect or failure in the utility lines, pipes, wires, and other facilities serving the Premises as the result of circumstances outside of Landlords reasonable control, or (iii) any repairs, maintenance, alterations, or improvements to any portion of the Property made in connection with correcting any of the foregoing circumstances or providing the services to be furnished by Landlord pursuant to this Paragraph. If as the result of any of the foregoing, the Premises, or any portion thereof, remain untenantable for more than ten (10) days after written notice from Tenant to Landlord specifying the circumstances giving rise to such untenantability, then as Tenants sole and exclusive remedy Minimum Rent and Additional Rent shall abate for so long thereafter as the Premises, or any portion thereof, remain untenantable. Such abatement of Base Rent and Additional Rent shall not extend the Term of this lease.
8. Alterations and Improvements . Tenant shall make no alterations, additions, or improvements to the Premises or the Property without the prior written consent of Landlord in each instance, which consent shall not be unreasonably withheld. Tenant shall comply with all reasonable requirements of Landlord relating to approval of plans and specifications, compliance with building codes and other laws, protection of the integrity, condition, and proper functioning of the roof, walls, foundations, and other structural elements of the Building and of the Buildings mechanical, electrical, and plumbing systems and equipment, employment and bonding of contractors, insurance, aesthetic considerations, and other relevant matters as determined by Landlord. All alterations, additions or improvements, including without limitation all partitions, walls, railings, carpeting, floor and wall coverings, and other fixtures (excluding Tenants trade
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fixtures) made by, for, or at the direction of Tenant shall become the property of Landlord when made, and shall remain upon the Premises at the expiration or earlier termination of this Lease. Landlord reserves the right to make structural and nonstructural alterations, additions, and improvements to the Property, to re-stripe parking areas and otherwise control parking and traffic movement on Property, and to change the name or street address (if required by local authorities) of the Property.
9. Trade Fixtures and Other Personal Property . Any trade fixtures installed in the Premises at Tenants expense shall remain Tenants personal property, and Tenant shall have the right at any time during the Term of this Lease to remove such trade fixtures (provided that any damage to the Building or Premises caused by such removal shall be repaired by Tenant within a commercially reasonable amount of time). On or before the expiration of the Term or earlier termination of this Lease, Tenant shall remove all trade fixtures and other personal property of Tenant from the Premises, repair any damage to the Building or Premises caused by removal of its trade fixtures and other personal property, and leave the Premises in a clean condition free of waste, refuse, or debris, reasonable wear and tear and damage by casualty expected. If Tenant fails to do so, Landlord may retain, store, or dispose of such trade fixtures and other personal property however Landlord chooses without liability of any kind to Tenant, repair any damage to the Building or Premises caused by removal of such trade fixtures and other personal property, and clean the Premises and properly dispose of all such waste, refuse, or debris; and all costs and expenses incurred by landlord in connection with the foregoing shall be payable by Tenant to Landlord on written demand. The following property shall be considered part of the permanent improvements to the Building owned by Landlord, not trade fixtures of Tenant, and shall not be removed from the Premises by Tenant under any circumstances: (a) HVAC systems, fixtures, or equipment; (b) lighting fixtures or equipment; (c) carpeting, other permanent floor coverings, or raised flooring; (d) paneling or other wall covers; (e) plumbing fixture and equipment; and (f) permanent shelving and built-in cabinetry.
9.1 Bank Vault . Bank vault shall be provided by Tenant and shall be deemed a trade fixture hereunder. Vault must be approved by Landlord and its structural engineer prior to installation. Tenant agrees that upon termination or expiration of this Lease by either party, the removal of the vault is the responsibility of the Tenant.
9.2 ATM . Landlord agrees to allow Tenant to install an any-time teller machine (ATM) on or near the Premises. Tenant is responsible for the cost of the installation and maintenance of the ATM, and this machine shall be deemed a trade fixture hereunder. The location of the ATM must be approved by the Landlord, which approval Landlord shall not unreasonably withhold or delay. If the parties hereto agree to locate the ATM on the Property but not on the Premises, the parties hereto will amend this Lease, to the extent Landlord deems appropriate, in order (a) to describe the location of the ATM, (b) to set out the amount of rent due on the ATM from Tenant during the Term and (c) to set forth, among other things, the rights, obligations and duties of the parties in connection with the ATM. Tenant agrees that upon termination or expiration of this Lease, the removal of this ATM shall be the responsibility, and at the cost, of Tenant.
10. Signs and Advertising . Landlord will provide a Building Directory for the first floor, and Tenant will be responsible for proper name identification on the directory.
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Landlord will provide all interior tenant name identification and code required signs in the Common Areas. Tenant is responsible for cost to install and maintain building signs (if allowed by Codes). Signs must also be installed to building specifications, and the location of these signs must be approved by Landlord, which approval Landlord shall not unreasonably withhold or delay. In this regard, Landlord agrees that (a) Tenant may erect a sign on the east end of the Building between the first and second floors and (b) such sign shall be, at Tenants election, as large of a sign as permitted by the applicable building codes authority and as reasonably allowed by Landlord.
11. Landlords Right of Entry . Landlord and persons authorized by Landlord may enter the Premises at any time without notice to Tenant in the event of emergency involving possible injury to property or persons in or around the Premises of the Building. Landlord and persons authorized by Landlord shall also have the right to enter the Premises at all reasonable times and upon reasonable notice for the purposes of making repairs or connections, making alterations, additions, or improvements to the Building, installing utilities, providing services to the Premises other than routine janitorial service, providing services for other tenants, making inspections, or showing the Premises to prospective purchasers or lenders of the Property. During the last six (6) months of the Term, Landlord and persons authorized by Landlord shall have the right at reasonable times and upon reasonable notice to show the Premises to prospective tenants.
12. Casualty Damage . Tenant shall give prompt notice to Landlord of any damage by fire or other casualty of or on the Premises. If such damage or casualty renders any substantial part of the Premises untenantable and the repair time to restore the Premises to a tenantable condition will exceed one hundred twenty (120) days (or will exceed thirty (30) days in the case of damage occurring during the last twelve (12) months of the Term), or if any mortgagee of the Property requires application of the insurance proceeds to the reduction of the mortgage debt upon the occurrence of any such casualty, or if any material uninsured loss occurs, Landlord may, at its option, terminate this Lease by so notifying Tenant in writing within sixty (60) days after the date of the casualty or loss. If the damage by fire or other casualty renders any substantial part of the Premises untenantable and if the repair time to restore the Premises to a tenantable condition will exceed sixty (60) days (or will exceed thirty (30) days in the case of damage occurring during the last twelve (12) months of the Term), Tenant may elect to terminate this Lease by so notifying Landlord in writing within thirty (30) days after the date of the casualty. If the Lease is not so terminated by Landlord or Tenant, Landlord shall promptly begin and diligently pursue the work of restoring the Premises (including the initial Tenant Improvements) to substantially their former condition as soon as reasonably possible. Landlord shall not, however, be required to restore any alterations, additions, or improvements other than the initial Tenant Improvements. Landlord shall allow Tenant an equitable abatement of Base Rent and Additional Rent during the time and to the extent the Premises are untenantable as the result of fire or other casualty, but such abatement shall not extend the Term.
13. Condemnation . If all or substantially all of the Property is condemned or is sold in lieu of condemnation to the condemning authority, then this Lease shall terminate on the date the condemning authority takes possession. If less than all of the Property is so condemned or sold (whether or not the Premises are affected) and in Landlords
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judgment, the Property cannot be restored to an economically viable condition, or if any mortgage of the Property requires application of condemnation proceeds to the reduction of the mortgage debt, Landlord may terminate this Lease by written notice to Tenant effective on the date the condemning authority takes possession. If the condemnation will render any substantial part of the Premises untenantable, Tenant may terminate this Lease by written notice to Landlord effective on the date the condemning authority takes possession of the affected part of the Premises. If this Lease is not so terminated by Landlord or Tenant, Landlord shall, to the extent feasible, restore the Premises (including the Tenant Improvements) to substantially their former condition. Landlord shall not, however, be required to restore any alterations, additions, or improvements other than the initial Tenant Improvements. Landlord shall allow Tenant an equitable abatement of Base Rent and Additional Rent during the time and to the extent the Premises are untenantable as the result of any condemnation, but such abatement shall not extend the Term. All condemnation awards and proceeds shall belong exclusively to Landlord, and Tenant shall not be entitled to, and expressly waives and assigns to Landlord, all claims for any compensation for condemnation; provided, however, if Tenant is permitted by applicable law to maintain a separate action that will not reduce condemnation awards or proceeds to Landlord, Tenant shall be permitted to pursue such separate action for an award to which Tenant may be entitled, including but not limited to loss of business, moving expenses, Tenants trade fixtures, and improvements or alterations to the Premises for which Tenant paid.
14. Transfers by Tenant .
(a) Without the prior written consent of Landlord in each instance, which consent will not be unreasonable withheld, Tenant shall not do any of the following (as used in this Paragraph, a Transfer): (i) assign this Lease or any estate or interest therein, whether absolutely or collaterally as security for any obligation; (ii) sublease any part of the Premises; (iii) permit any assignment of this Lease or any estate or interest therein by operation of law; (iv) grant any license, concession, or other right of occupancy for any part of the Premises; or (v) permit the use of the Premises by any person other than Tenant and its agents and employees; provided, however, Tenant may assign this Lease, or sublet all or a portion of the Premises, to Franklin Synergy Bank, which is or shall be a wholly owned subsidiary of Tenant and a Tennessee chartered Federal Reserve member state bank (Bank), without the prior consent of Landlord. If Tenant should assign this Lease, or sublet any portion of the Premises, to Tenant, (x) Tenant shall simultaneously give to Landlord evidence of such assignment or sublease, which assignment or sublease shall be in form and substance acceptable to Landlord, (y) Tenant shall remain primarily liable to Landlord hereunder, and (z) Bank shall execute and deliver a Lease Authorization, in a form similar to Exhibit F attached hereto; provided, however, the information and representations of Tenant set forth in that Authorization shall be about or from Bank, not Tenant, and Bank may delete from such Authorization, to the extent Bank deems appropriate, Section (B)(4) thereof. If Tenant should assign this Lease to Bank, Landlord shall exercise its reasonable best efforts to amend this Lease to the extent required by any governmental agency charged by the law with the regulation of Bank.
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(b) If Tenant requests Landlords consent to a Transfer, Landlord at its option may either (i) approve or disapprove the Transfer, or (ii) terminate this Lease with respect to the part of the Premises included in the proposed Transfer. In connection with each Transfer request by Tenant, Tenant shall obtain and furnish to Landlord all reasonable documents, financial reports, and other information Landlord reasonably requires in order to evaluate the proposed Transfer. Landlord shall advise Tenant of Landlords decision with respect to the requested Transfer within thirty (30) days after receipt of Tenants written Transfer request and all requested supporting materials. If Landlord refuses to consent to a requested Transfer, this Lease shall nonetheless remain in full force and effect. The consent of Landlord to one requested Transfer shall never be construed to waive the requirement for Landlords consent to other Transfers, nor shall any consent by Landlord or Transfer by Tenant discharge or release Tenant from any obligations or liabilities to Landlord.
(c) All cash or other proceeds of any Transfer in excess of the Base Rent and Additional Rent payable under this Lease shall be paid to Landlord, and Tenant hereby assigns to Landlord all rights it might have or ever acquire to the excess proceeds. No transferee of less than the entire Premises or Lease shall ever be entitled to exercise any extension, expansion, or other option provided in this Lease or to the return of the Deposit (as defined in Exhibit C hereto). If an Event of Default by Tenant occurs after any Transfer, Landlord may, at its option, collect rent directly from the transferee, and Tenant hereby authorizes any transferee to pay rent directly to Landlord at all times after receipt of written notice from Landlord. No direct collection by Landlord from any transferee shall constitute a novation or release Tenant from its obligations and liabilities under this Lease.
15. Transfers by Landlord . Landlord shall have the unrestricted right to sell, assign, mortgage, encumber, or otherwise dispose of all or any part of the Property or any interest therein. Upon sale or other disposition of the Property to a party who assumes the obligations of Landlord under this Lease, Landlord shall be released and discharged from obligations and liabilities thereafter accruing under this Lease (including liability for the return of any Deposit), and Tenant shall look solely to Landlords successor for performance of the Lease thereafter (including the return of any of the Deposit). Tenants obligations under this Lease shall not be affected by any sale, assignment, mortgage, encumbrance, or other disposition of the Property by Landlord, and Tenant shall attorn to anyone who thereby becomes the successor to Landlords interest in this Lease. Landlord warrants that Tenants rights will not diminish under this Lease if Building is transferred.
16. Subordination . This Lease is subject and subordinate to any and all mortgages now or hereafter encumbering the Property. Landlord represents that, so long as Tenant is not in default under any of the terms, covenants and conditions of the Lease beyond any applicable grace or cure period, the Tenant shall not be disturbed in the quiet and peaceful possession of the Premises. Such subordination shall be self-operative without the necessity of any further instrument, but if requested by Landlord, Tenant shall promptly execute and deliver to Landlord any instrument Landlord may reasonably request to evidence the subordination of this Lease to such mortgages or to acknowledge the assignment of this Lease as additional security for such mortgages. If any person
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acquires the Property through the exercise of remedies provided in a mortgage, Tenant shall automatically attorn to and become the tenant of the new owner of the Property, except that the new owner shall not be bound by any payment of rent for more than one (1) month in advance or liable for any act or omission of Landlord that occurred prior to the date the new owner acquired title and possession of the Property. Upon request by any successor owner of the Property, Tenant shall execute an instrument confirming the attornment required by this Lease.
17. Estoppel Certificates; Financial Statements; Security Deposit .
(a) Within ten (10) days after a written request by Landlord, Tenant shall deliver an estoppel certificate in a reasonable form supplied by or acceptable to Landlord certifying any facts that are then true with respect to this Lease, including without limitation that this Lease is in full force and effect, that, to the best of the tenants knowledge that no default exists on the part of Landlord or Tenant, that Tenant is in possession, that Tenant has commenced payment of rent, and that Tenant claims no defenses or offsets with respect to payment of rent under this Lease. Likewise, within ten (10) days after a written request by Tenant, Landlord shall deliver to Tenant an estoppel certificate covering such matter of fact with respect to Landlords obligations under the Lease as are reasonably requested by Tenant.
(b) If Landlord intends to sell the Property or obtain a loan secured by the Property, then within ten (10) days of Landlords written request, Tenant shall furnish Landlord its annual report and other reasonable documentation. Tenant will not have to provide unreasonable documentation. Tenant shall furnish concurrently with the execution of this Lease, a financial statement of Tenant. Tenant hereby represents and warrants that all the information contained therein is complete, true, and correct. Tenant understands that Landlord is relying upon the accuracy of the information contained therein. Should there be found to exist any inaccuracy within the financial statement which adversely affects Tenants financial standing, or should Tenants financial circumstances materially change, Landlord may demand, as additional security, an amount equal to an additional two (2) months rent, which additional security shall be subject to all terms and conditions herein, require a fully executed guaranty by a third party acceptable to Landlord, elect to terminate this Lease, or hold Tenant liable hereunder.
(c) Tenant shall, upon the execution and delivery of this Lease, deliver to Landlord the Deposit (as defined in Exhibit C attached hereto).
18. Events of Default by Tenant . Each of the following constitutes an Event of Default by Tenant (herein so called).
(a) Tenant fails or refuses to pay any installment of Base Rent, Additional Rent, or any other sum payable under this Lease when due, and the failure or refusal continues for at least ten (10) days after the due date. Before declaring default, Landlord agrees to provide written notice to the Tenant and to give Tenant ten (10) days to cure.
(b) Tenant fails or refuses to comply with any provision of this Lease not requiring the payment of money, and the failure or refusal continues for at least thirty
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(30) days after written notice from Landlord; provided, however, if any failure by Tenant to comply with this Lease cannot be corrected within such 30-day period solely as a result of non-financial circumstances outside of Tenants control, and if Tenant has commenced substantial corrective actions within such 30-day period and is diligently pursuing such corrective actions, such 30-day period shall be extended for such additional time as is reasonably necessary to allow completion of actions to correct Tenants noncompliance.
(c) Tenants leasehold estate is taken on execution or other process of law in any action against Tenant.
(d) Tenant fails or refuses to take occupancy of the Premises upon the Commencement Date, or Tenant ceases to do business in, or abandons any substantial part of, the Premises.
(e) Tenant or any guarantor of this Lease files a petition under any chapter of the United States Bankruptcy Code, as amended, or under any similar law or statute of the United States or any state, or a petition is filed against Tenant or any such guarantor under any such statute and not dismissed with prejudice within twenty (20) days of filing, or a receiver or trustee is appointed for Tenants leasehold estate or for any substantial part of the assets of Tenant or any such guarantor and such appointment is not dismissed with prejudice within sixty (60) days, or Tenant or any such guarantor makes and assignment for the benefit of creditors.
19. Landlords Remedies . If an Event of Default by Tenant occurs, Landlord shall be entitled then or at any time thereafter to do any one or more of the following at Landlords option:
(a) Enter the Premises if need be, and take whatever curative actions are necessary to rectify Tenants noncompliance with this Lease; and in that event Tenant shall reimburse Landlord on written demand for any reasonable expenditures by Landlord to effect compliance with Tenants obligations under this Lease.
(b) Terminate this Lease, in which event Tenant shall immediately surrender possession of the Premises to Landlord, or without terminating this Lease, terminate Tenants right to possession of the Premises, and in either case, Landlord may re-enter and take possession of the Premises, evict Tenant and all parties then in occupancy or possession, and if permitted under applicable law, change the locks on the doors of the Premises without making keys to the changed locks available to Tenant.
(c) If Landlord has terminated this Lease, recover all Base Rent, Additional Rent, and other sums owing and unpaid under this Lease as of the date of termination plus reasonable legal fees plus damages measured by the difference in the rental value of the Premises if this Lease had been fully performed for the balance of the Term and the rental value of the Premises following the Event of Default by Tenant, which damages shall be payable, at the election of Landlord, (i) in monthly installments when and as rent would become due hereunder, were the Lease not so terminated, or (ii) in a final settlement. If Landlord elects such a final settlement, Landlord shall have a right to, and Tenant hereby agrees to pay, the positive difference between the total of all Base Rent,
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Additional Rent and other sums due and payable by Tenant hereunder for the then remainder of the Term and the reasonable rental value of the Premises for such period, such difference to be discounted to present value at a rate equal to 250 basis points over the then current 10 year U.S. Treasury Rate. The election of any other remedy hereunder shall in no way prejudice Landlords right hereunder at any time thereafter to demand final settlement or to seek any other right or remedy.
(d) If Landlord has not terminated this Lease (whether or not Landlord has terminated Tenants right to possession of the Premises or actually retaken possession), recover all Base Rent, Additional Rent, and other sums then or thereafter owing and unpaid under this Lease, together with all costs, if any, reasonably incurred in reletting the Premises (including remodeling, lease commission, allowance, inducement, and other costs), less all rent, if any, actually received from any reletting of the Premises during the remainder of the Term, which sums shall be payable in monthly installments when and as rent would become due hereunder. Landlord shall have the right following an Event of Default by Tenant to relet the Premises on Tenants account without terminating the Lease, any such reletting to be on such terms as Landlord considers reasonable under the circumstances. However, under this paragraph Tenant shall not be liable for more than the total of the Base Rent plus Additional Rent Tenant would have paid if the Lease had been fully performed for the balance of the Term.
(e) Recover all reasonable costs of retaking possession of the premises and any other damages incidental to the Event of Default by Tenant.
(f) Terminate all of Tenants rights to any allowances or under any renewal, extension, expansion, refusal, or other options granted to Tenant by this Lease.
(g) Exercise any and all other remedies available to Landlord at law or in equity, including injunctive relief of all varieties.
If Landlord elects to retake possession of the Premises without terminating this Lease, it may nonetheless at any subsequent time elect to terminate this Lease and exercise the remedies provided above on termination of the Lease. Nothing done by Landlord or its agents shall be considered an acceptance of any attempted surrender of the Premises unless Landlord specifically so agrees in writing. No re-entry or taking of possession of the Premises by Landlord, nor any reletting of the Premises, shall be considered an election by Landlord to terminate this Lease unless Landlord gives Tenant written notice of termination. Landlords remedies must be subject to Tennessee forcible entry and detainer statutes.
20. Landlords Default . It shall be an Event of Default by Landlord (herein so called) only if Landlord fails to comply with any provision of this Lease and the failure continues for at least thirty (30) days after written notice from Tenant to Landlord (with a copy to Landlords mortgagees if Tenant has been notified in writing of the identities and addresses of such mortgagees); provided, however, if any failure by Landlord to comply with this Lease cannot be corrected within such 30-day period solely as a result of non-financial circumstances outside of the control of Landlord, and if substantial corrective actions have commenced within 30-day period and are being diligently pursued, such 30-day period shall be extended for such additional time as is reasonably necessary to allow completion of actions to correct Landlords noncompliance.
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21. Tenants Remedies . Except as otherwise provided in this Lease, in the Event of Default by Landlord, Tenant shall be entitled to any remedies available at law or in equity. Notwithstanding anything in this Lease to the contrary, Landlord shall never be liable in the event of Default by Landlord under any promise of indemnity in this Lease, or under any other provision of this Lease for any loss of business or profits of Tenant or other consequential damages or for punitive or special damages of any kind. None of Landlords officers, employees, agents, directors, shareholders, or partners shall ever have any liability to Tenant under or in connection with this Lease. Tenant agrees to look solely to Landlords interest in the Property for the recovery of any judgment against Landlord, and Landlord shall never be personally liable for any judgment.
22. Indemnification .
(a) Tenant shall indemnify and hold Landlord and its officers, employees, agents, directors, shareholders, and partners harmless against any loss, liability, damage, fine or other governmental penalty, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, resulting from: (i) Tenants noncompliance with or violation of any law, ordinance, or other governmental regulation applicable to Tenant or its use and occupancy of the Premises: (ii) the use, generation, storage, treatment, or transportation, or the disposal or other release into the environment, of any Hazardous Material by Tenant or its employees, agents, or contractors or as the result of Tenants use and occupancy of the Premises; or (iii) injury to persons or loss or damage to property to the extent caused by any negligent or wrongful act or omission of Tenant or its employees, agents, and contractors, but only to the extent the loss or damage would not be covered by property and casualty insurance of the type and amount required to be carried by Landlord pursuant to this Lease (whether or not actually so carried).
(b) Landlord shall indemnify and hold Landlord and its officers, employees, agents, directors, members, and managers harmless against loss, liability, damage, fine or other governmental penalty, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefore, resulting from: (i) Landlord noncompliance with or violation of any law, ordinance, or other governmental regulation applicable to Landlord or its use of the Building; (ii) the use, generation, storage, treatment, or transportation, or the disposal or other release into the environment, of any Hazardous Material by Landlord or its employees, agents, or contractors or as the result of Landlords use of the Building; or (iii) injury to persons or loss or damage to property to the extent caused by any negligent or wrongful act or omission of Landlord or its employees, agents, and contractors, but only to the extent the loss or damage would not be covered by property and casualty insurance of the type and amount required to be carried by Landlord pursuant to this Lease (whether or not actually so carried).
23. Protection Against Liens . Tenant shall do all things necessary to prevent the filing of any mechanics, materialmens, or other type of lien or claim against Landlord or the Property by, against, through, or under Tenant or its contractors. If any such lien or claim is filed, Tenant shall either cause the same to be discharged within twenty (20) days after filing, or if Tenant in its discretion and in good faith determines that such lien
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or claim should be contested and if all required consents or approvals of Landlords mortgagee are obtained, Tenant shall furnish such security as may be necessary to prevent any foreclosure proceedings against the Property during the pendency of such contest. If Tenant fails to discharge such lien or claim within such 20- day period or fails to furnish such security, then Landlord may at its election, in addition to any other right or remedy available to it, discharge the lien or claim by paying the amount alleged to be due or by giving appropriate security. If Landlord discharges or secures such lien or claim, then Tenant shall reimburse Landlord on written demand for all sums paid and all costs and expenses (including reasonable attorneys fees and costs of litigation) reasonably incurred by Landlord.
24. Holding Over . If Tenant remains in possession of any part of the Premises after the expiration of the Term of this Lease, whether with or without Landlords consent, a tenancy from month-to-month shall be created, the monthly installments of Minimum Rent payable during such holdover period shall be one hundred fifteen percent (115%) of the monthly installments of Minimum Rent payable immediately preceding such expiration, and all Additional Rent and other sums payable under this Lease shall continue to be due and payable. The acceptance of any rent or other payments from Tenant with respect to any holdover period shall not serve to extend the Term or waive any rights of Landlord, but Landlord may at any time refuse to accept rent or other payments from Tenant, and may re-enter the Premises, evict Tenant and all parties then in occupancy or possession, take possession of the Premises, and if permitted under applicable law, change the locks on the doors of the Premises without making keys to the changed locks available to Tenant. Tenant shall indemnify and hold Landlord harmless against any loss, liability, damage, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, related to Tenants holding over, including liabilities to any person to whom Landlord may have leased any part of the Premises.
25. Attorneys Fees . If an Event of default by Tenant or an Event of default by Landlord occurs, the Landlord shall be entitled to reasonable attorneys fees and any costs of litigation incurred in exercising and enforcing its remedies under this Lease.
26. Waiver . The failure of a party to insist upon the strict performance of any provision of this Lease or to exercise any remedy for an event of default. No waiver shall be effective unless expressed in writing signed by the waiving party. No waiver shall affect any condition other than the one specified in the waiver and then only for the time and in the manner stated. Landlords receipt of any rent or other sums with knowledge of noncompliance with this Lease by Tenant shall not be considered a waiver of the noncompliance. No payment by Tenant of a lesser amount than the full amount then due shall be considered to be other than on account of the earliest amount due. No endorsement or statement on any check or any letter accompanying any check or payment shall be considered an accord and satisfaction, and Landlord may accept any check or payment without prejudice to Landlords right to recover the balance owing and to pursue any other available remedies.
27. Leasing Commissions . Each of Landlord and Tenant represents and warrants to the other that it has not dealt with anyone claiming any entitlement to any commission in connection with this leasing transaction, except for Ron Taylor at Provision Commercial Realty, whose commissions Landlord has agreed to pay at a rate of 3.5% of the Base Rent
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due during the initial term of this Lease, i.e. .035 x $$849,291.95 equals $29,725.22. Landlord shall pay such broker one-half of such sum upon the date hereof and the remaining half upon the date Tenant begins occupying the Premises. Each of Landlord and Tenant agrees to indemnify and hold the other harmless against any loss, liability, damage, cost, or expense (including reasonable attorneys fees and costs of litigation), or any claim therefor, for any leasing or other commissions, fees, charges, or payments resulting from or arising out of their respective actions in connection with this Lease.
28. Notices . Any notice may be given by (a) depositing written notice in the United States mail, postpaid and certified and addressed to the party at its notification address under this Lease with return receipt requested, (b) delivering written notice in person or by commercial messenger or overnight private delivery service to the party at its notification address under this Lease, or (c) by facsimile transmission of written notice deposited in the mail in the manner described above shall be effective on the third business day after it is so deposited, even if not received. Written notice given in person or by commercial messenger, overnight private delivery, or facsimile transmission in the manner described above shall be effective as of the time of receipt at the destination address as evidenced by a receipt signed by an employee of receiving party or by facsimile confirmation of transmission. The notification addresses of the parties are specified on the signature page(s) of this Lease. Each party shall have the right to change its address by not less than at least ten (10) days prior written notice to the other party.
29. Option to Extend Term . Tenant shall have 3 options (hereinafter referred to as the Extension Option), provided that this Lease shall be in full force and effect, without default on the part of Tenant hereunder beyond applicable notice and grace periods herein, on the date Tenant exercises the Extension Option, to extend the Term for an extension term (hereinafter referred to as the Extension Term) of five (5) years, to commence on the day (hereinafter referred to as the Extension Term Commencement Date) next succeeding the Expiration Date and to expire on the date (herein referred to as the Extension Term Expiration Date) which shall be the day preceding the fifth (5 th ) anniversary of the Extension Term Commencement Date. Tenant shall exercise the Extension Option by sending a written notice thereof (which notice is hereinafter referred to as the Extension Notice) to the Landlord by certified mail, return receipt requested, on or before the day which shall be six (6) months prior to the Expiration Date. If Tenant shall send the Extension Notice within the time and in the manner hereinbefore provided, the Term of this Lease shall be deemed extended for the Extension Term upon the terms, covenants and (a) any terms, covenants, or conditions hereof that are expressly or by their nature inapplicable to the Extension Term shall not apply during such Extension Term; (b) the Base Annual Rent payable by Tenant during the Extension Term (hereinafter referred to as the Extension Rent) shall be at the rate of rent in place during the last year of the Term, plus an annual 3.0% increase which shall apply to each year of the Extension Term.
30. Parking Spaces . All parking is open for use by all tenants except for specific designated parking spaces. This Tenant shall have four (4) designated parking spaces in the parking lot with locations determined by the Landlord.
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31. Letter of Credit .
(a) On or prior to May 15, 2007, Tenant agrees to provide to Landlord an unconditional letter of credit issued by a federally-insured banking institution, naming Landlord as the beneficiary and being in form and substance similar to Exhibit G attached hereto and reasonably acceptable to Landlord (the LC). The LC shall be in the amount of $128,479.00, which is the sum of the Base Rent for the year following the Rent Commencement Date plus Tenants Prorata Share of the Operating Expenses (as defined in Exhibit D attached hereto), as such Expenses are reasonably estimated by Landlord for such year. The LC shall be in full force and effect beginning May 15, 2007 and shall remain in full force and effect for the next twelve consecutive months. Tenant shall be responsible for obtaining the LC at its sole expense.
(b) In the event Moodys rating on the long term senior debt of the issuer of the LC becomes less than BBB while the LC is outstanding, then Landlord may notify Tenant of such fact and Tenant shall have thirty (30) days from the date of such notice within which to either (i) secure the LC with additional collateral acceptable to Landlord in its reasonable discretion, (ii) provide a substitute LC issued by a banking institution reasonably satisfactory to Landlord having its senior long term debt rated at least BBB by Moodys or an equivalent rating service, or (iii) have the LC confirmed by a banking institution reasonably satisfactory to Landlord and having a senior long term debt rated at least BBB by Moodys or an equivalent rating service; such confirmation shall be in a form reasonably satisfactory to Landlord. Failure to do one of the foregoing within such 30 day period shall entitle Landlord to present the LC for payment and hold the proceeds without interest as a security deposit under this Lease.
(c) Upon (i) the occurrence of an Event of Default by Tenant (other than a non-monetary default described in Section 18(b) hereof), (ii) Landlord giving Tenant written notice of such occurrence (other than the occurrence of an Event of Default described in Section 18(e), as to which Landlord shall not be required to give any notice hereunder) and (iii) Tenant failing to cure, within ten (10) days of its receipt of such notice, any Event of Default about which Landlord gave (and was obligated under this Section 31(c) to give) Tenant notice, Landlord shall have the right, in addition to any or all other remedies contained herein, to present the LC for payment. \
32. Notice of Available Space . If and when any rentable space located on the first floor of the Building is or shall be available for lease, Landlord shall promptly inform Landlord of such availability.
33. Miscellaneous .
(a) If requested by Landlord, Tenant shall furnish appropriate evidence of the valid existence and good standing of Tenant and the authority of any parties signing this Lease to act for Tenant. If requested by Tenant, Landlord shall furnish appropriate evidence of the valid existence and good standing and the authority of any parties signing this Lease to act for Landlord.
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(b) This document, including the Lease Addendum, embodies the entire contract between the parties, and supersedes all prior agreements and understandings between the parties related to the Premises, including all lease proposals, letters of intent, and similar documents. All representations, warranties, or agreements of an inducement nature, if any, are merged with, and stated in this document. This Lease may be amended only by a written instrument executed by both Landlord and Tenant.
(c) No consent or approval by Landlord shall be effective unless given in writing signed by Landlord or its duly authorized representative. Any consent or approval by Landlord shall extend only to the matter specifically stated in writing.
(d) The captions appearing in this Lease are included solely for convenience and shall be given any effect in construing this Lease.
(e) If any provision of this Lease shall not be affected. Each separate provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.
(f) This Lease binds not only Landlord and Tenant, but also their respective successors, and assigns (to the extent assignment is permitted by this Lease).
(g) This Lease is governed by the laws of the State of Tennessee.
(h) All references to business days in this Lease shall refer to days that national banks are open for business in the city where the Property is located. Time is of the essence of this lease.
(i) All references to mortgage(s) in this Lease shall include deeds of trust, deeds to secure debt, other security instrument, and any ground or other lease under which Landlord may hold title to the Property as lessee. All references to mortgagee(s) in this Lease shall include trustees, secured parties, ground or other lessors, and other parties holding any lien, security, or other interest in the Property pursuant to any mortgage.
(j) Any liability of obligation of Landlord or Tenant arising during or accruing with respect to the term of this Lease shall survive the expiration or earlier termination of this Lease, including without limitation, obligations and liabilities relating to (i) the final adjustment of estimated installments of Additional Rent to actual Additional Rent owed, (ii) the condition of the Premises or the removal of Tenants property, and (iii) indemnity and hold harmless provisions of this Lease.
(k) Tenant agrees not to record this Lease. Tenant may record a memorandum of this Lease in a form approved by Landlord in writing prior to recording provided Tenant pays all taxes, recording fees, or other governmental charges incident to such recording. The memorandum shall not disclose the rent payable under this Lease and shall expressly provide that it shall be of no further force or effect after the last day of the Term or on filing by Landlord of an affidavit that this Lease has expired or been terminated. Additionally, Tenant shall not disclose the terms of this Lease to any third
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party except (i) legal counsel to tenant, (ii) any assignee of Tenants interest in this Lease or sublessee of Tenant, (iii) as required by applicable law or by subpoena or other similar legal process, or (iv) for financial reporting purposes. Tenant may disclose this Lease to corporate lenders and outside audit firms.
(l) Landlord has delivered a copy of this Lease solely for Tenants review, and such delivery does not constitute an offer to Tenant or an option reserving the Premises. This Lease shall not be effective until executed by both parties.
(m) Lessor acknowledges that the Tennessee Department of Financial Institutions, the Federal Deposit Insurance Corporation and the Federal Reserve Board (individually, a Regulatory Authority, and collectively, the Regulatory Authorities) are reviewing this Lease in connection with the application for Bank of a Tennessee state banking charter and the application of Lessee for a financial holding company, both of which applications are or will be filed with one or more Regulatory Authorities. In the event that any Regulatory Authority shall request revisions to this Lease in connection with its review of these applications, Lessor and Lessee shall negotiate in good faith to make reasonable amendments to this Lease addressing the revisions required by any of the Regulatory Authorities and necessary to obtain the approval of such Authority to one or both of these applications.
(n) This Agreement may be executed in multiple originals or counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same instrument. This Agreement may be executed by facsimile, with original signature pages to follow.
[Signatures on next page]
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IN WITNESS WHEREOF, the parties have caused this Lease to be executed pursuant to authority duly given as of the day and year first above written.
LANDLORD: | ||||
PCC INVESTMENTS II, LLC | ||||
By: |
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Its: |
MANAGING PARTNER |
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TENANT: | ||||
FRANKLIN FINANCIAL | ||||
NETWORK, INC. | ||||
By: |
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Its: |
Founder |
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EXHIBIT A
The Real Property
Land in Williamson County, Tennessee, being Lot No. 5, on the Plan of Lincoln Square Subdivision, as shown on plat of record in Plat Book 29, page 117, in the Registers Office of Williamson County, Tennessee, to which plat reference is hereby made for a more particular description.
Being the same property conveyed to PCC Investments II, LLC, a Tennessee limited liability company, by Deed of record in Book 3414, page 745, Registers Office for Williamson County, Tennessee.
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EXHIBIT B
Work Letter
Suites 106, 107 and 108
This Work Letter is dated May 11, 2007, between PCC INVESTMENTS II, LLC, a Tennessee limited liability company (Landlord), and FRANKLIN FINANCIAL NETWORK, INC., a Tennessee corporation (Tenant).
RECITALS
A. This Agreement is attached to and forms a part of that certain Lease dated May 11, 2007 (the Lease), pursuant to which Landlord has leased to Tenant 4,524 sq. ft. of certain office space, specifically Suite 106, 107 and 108 of the building commonly known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, as such space is more specifically described in the Lease (the Leased Space).
B. Tenant desires to make certain Tenant Improvements to the Leased Space, upon the terms and conditions contained in this Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Landlord and Tenant agree as follows:
1. | General Provisions |
1.1 Landlord shall provide Tenant with an allowance of Twenty and 00/100 Dollars ($20.00) per square foot of the Leased Space, i.e. $90,480.00 (the Allowance), for work in preparing the Leased Space for Tenants occupation, use and enjoyment under the terms of the Lease (the Work). The Work shall consist of the following: (i) the development of space plans, working drawings and all other Construction Documents (as described in Section 3.2 hereof), including supporting engineering studies (i.e., structural design or analysis, lighting or acoustical evaluations, or other studies as determined by Tenants architect) and (ii) all work necessary to construct the improvements necessary for Tenants occupation, use and enjoyment of the Leased Space, including, without limitation, all work shown on the working drawings approved by Landlord, which work will create finished ceilings, walls, and floor surfaces, as well as complete HVAC, lighting, electrical, and fire protection system for the Leased Space; provided, however, Landlord will not deliver the Leased Space to Tenant in order to commence the construction of such improvements until Landlord shall have paid for and caused the installation on the Leased Space of all sheetrock/gypsum board walls, poured floors, roof curbs, sprinkler heads (as turned up in the Leased Space), electrical panel (400 AMP) and HVAC units, which shall be installed to 1 ton per 320 square foot, and all
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of which shall be reasonably acceptable to Tenant. The Allowance shall be available for the costs of constructing the leasehold improvements to the Leased Space and other costs appertaining to such construction (the Construction Costs), which improvements are described in the Construction Documents (the Tenant Improvements). The Construction Costs shall include, without limitation, (a) all architectural, legal and engineering fees and expenses pertaining to the Work; (b) all contractor and construction manager costs and fees pertaining to the Work; (c) all permits and taxes pertaining to the Work or the Tenant Improvements; (d) all labor and material for the Work; (e) all fees to governmental authorities for permits, inspections and certificates of occupancy pertaining to the Work or the Tenant Improvements; (f) utilities during the construction of the Tenant Improvements; (g) all costs associated with any change, modification, or addition to the space plan, working drawings or any other Construction Document, as approved by Landlord and Tenant (a Change Order); and (h) all other out-of-pocket costs and expenses incurred by Tenant and/or Landlord directly related to the preparation of any of the Construction Documents or the construction of the Tenant Improvements or other sums due on the Work; provided, however, no portion of the Constructions Costs shall include any expenses paid or used for any movable furniture, other tangible personal property not permanently attached to the Leased Space, working capital for Tenant, or Base Rent or any other payments due under the Lease. Also, Tenant acknowledges and agrees to pay Landlord a project management fee of $0 per square foot of the Leased Space for Landlords management services relating to the Work if Tenant engages as its architect for the Work The Innovations Group, LLC; such fee shall be $.50 per square foot if Tenant engages some other architect for the project. This project management fee shall be paid from the Allowance and shall not be included in the Operating Expenses or as Additional Rent. Notwithstanding anything herein to the contrary, Landlord makes no representation or warranty that the Allowance is sufficient to pay the full amount of the Construction Costs.
1.2 If the Construction Costs exceed the Allowance, then Tenant shall pay such excess prior to taking occupancy of the Leased Space. Tenant agrees that in the event Tenant defaults in the timely payment of that amount of the Construction Costs that exceeds the Allowance, Landlord (in addition to all other remedies available to it) shall have the same rights as those rights arising under the Lease upon an event of default under the Lease because of the failure to pay timely Base Rent or other sums due under the Lease.
1.3 If, because of an omission, delay or default hereunder by Tenant or anyone acting under or for Tenant, the Work is not substantially completed by September 15, 2007 (the Projected Completion Date), the obligations of Tenant under the Lease (including, without limitation, the obligation to pay Base Rent) shall nonetheless commence as of the Projected Completion Date.
1.4 The Substantial Completion of the Work shall be deemed performed when all of the following have occurred: (a) Tenants architect executes and delivers to Tenant and Landlord a Certificate of Substantial Completion with respect to the Tenant Improvements evidencing, among other things, that Tenant has constructed the Tenant Improvements in substantial compliance with the Construction Documents; (b) Tenant and/or Landlord shall have obtained a certificate of occupancy for the Leased Space from
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the governmental authority which has authority to issue such certificates in the jurisdiction wherein the Leased Space are located; and (c) Landlord and Tenant shall have accepted the Tenant Improvements as being in substantial conformity with the Construction Documents.
1.5 Without the prior consent of Landlord, which consent Landlord can withhold according to its sole and unlimited discretion, neither Tenant nor Tenants authorized representatives (including Tenants Design Consultants, as defined in Section 2.1 hereof) will alter or modify or in any manner disturb the following systems or installations of the Building: fire or smoke rated partitions; Central (as hereinafter defined) plumbing systems; Central electrical systems; Central heating, ventilating and air conditioning systems; Central fire protection and fire alert systems; Central building maintenance systems; Central structural systems; and elevators. Only with Landlords express permission, which consent Landlord can withhold according to its sole and unlimited discretion, and under the direct supervision of Landlord or Landlords authorized representative shall Tenant or Tenants authorized representative alter, modify or in any manner disturb any such system or installation or any Branch (as hereinafter defined) of any such system or installation located within the Leased Space, including, but not limited to Branch plumbing system, Branch electrical system, Branch heating, ventilating and air conditioning system, and Branch fire protection and alert system. For purposes of this Agreement, the term Central shall be defined as that portion of the Building system or component which is common to and/or serves or exists for the benefit of all tenants in the Building, and shall include, but shall not be limited to, main fire loops on each floor of the Building and duct work to any variable air volume air-handling unit (a VAV box). For purposes of this Agreement, the term Branch shall be defined as that portion of any Building system or component which serves to connect or extend Central systems into the Leased Space.
1.6 All design, construction and installation of the Work shall conform to the requirements of applicable building, plumbing, electrical and fire codes and the requirements of any authority having jurisdiction over or with respect to the Work, as such codes and requirements may from time to time be amended or supplemented. Furthermore, all such design, construction and installation of the Work is subject to the prior written approval of Landlord.
1.7 Tenant agrees to use, as a part of the Work, Building standard materials for the following: corridor doors, VAV boxes, hardware, lights or other materials, unless other corridor doors, VAV boxes, hardware or lights are requested by Tenant and approved in writing by Landlord, which approval shall not be unreasonably withheld or delayed.
1.8 Tenant acknowledges that Landlord has entered into the Lease in reliance on the diligent and good faith cooperation and performance of Tenant in the timely completion of the Work. Also, Landlord hereby covenants and agrees that it will cooperate with Tenant, diligently and in good faith, in order that Tenant may be able to complete the Work by the Projected Completion Date.
1.9 Tenant shall not be entitled to any credit for any portion of the Allowance not expended as Construction Costs.
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2. | Preliminary Design Consultant Decisions and Schedule for Work Activities |
2.1 Not later than fourteen (14) days, Tenant shall inform Landlord in writing of the name and contact information for each of its architects, engineers and interior designers for, among other things, Tenants space plan for the Leased Space (Tenants Design Consultants).
2.2 Below is a schedule of activities for the Work.
(a) Tenants architect shall expeditiously prepare a space plan and forward it to Landlord. Upon receipt thereof, Landlord shall have five (5) days to review the space plan (or two (2) business days if The Innovations Group, LLC is the architect for the Work). If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), the plan shall be deemed approved. If Landlord objects to that plan, Tenant shall resubmit a revised space plan to Landlord, and such revised plan shall be treated as through it was the first proposed space plan prepared pursuant to this Section. The space plan approved by Landlord shall be the Final Space Plan.
(b) After Landlords approval of the Final Space Plan, Tenant shall promptly cause to be prepared and delivered to Landlord a preliminary estimate of the cost of the Tenant Improvements for Landlords approval or rejection. The estimated construction cost approved by Landlord, which approval shall not be unreasonably withheld or delayed, shall be the Estimated Construction Cost.
(c) Upon Landlords approval of the Estimated Construction Cost, Tenant shall cause to be prepared and delivered to Landlord the working drawings, a construction schedule for the Tenant Improvements, and a final cost proposal for the Tenant Improvements, all in accordance with the Final Space Plan, Upon receipt thereof, Landlord shall have five (5) days to review such drawings, schedule and proposal (or two (2) business days if The Innovations Group, LLC is the architect for the Work). If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), such drawings, schedule and proposal shall be deemed approved. If Landlord objects to any of the foregoing, Tenant shall resubmit revised working drawings, construction schedules and cost proposals pursuant to this Section until Landlord approves of all such Construction Documents.
(d) Landlords review, inspection or approval of plans, working drawings, construction schedules, cost proposals, any other Construction Document or the Tenant Improvements shall not be construed as any representation or warranty by Landlord that any of the foregoing comply with applicable legal requirements or that the Tenant Improvements are being constructed in accordance with the working drawings.
(e) Following approval by Landlord of the working drawings, the construction schedule, and the final cost proposal, Tenant shall cause applications to be made to the appropriate governmental authorities for necessary approvals and building permits for the Tenant Improvements. Upon receipt of the necessary approvals and permits, Tenant shall promptly begin construction of the Tenant Improvements and diligently proceed to completion of construction of the Tenant Improvements. All Tenant
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Improvements shall be constructed in a good and workmanlike manner and in compliance with all federal, state and local laws, ordinances, rules and regulations, and free of all liens and claims of contractors and material suppliers. During construction of the Tenant Improvements, Tenant shall cause all construction debris to be promptly removed and shall take all reasonable precautions to avoid safety and fire hazards. Tenant shall promptly repair any damage to the Building caused by Tenant, its employees, agents or contractors during the construction of the Tenant Improvements.
3. | Preparation of Construction Documents |
3.1 Landlord shall cooperate with Tenant in developing plans and specifications for the Work, which plans and specifications shall be prepared by Tenants Design Consultants. All costs associated with the review and approval of the plans and specifications by Landlord or Landlords architect and engineers shall be paid by Tenant, and such costs shall be applied against the Allowance. Tenant shall contract with each of Tenants Design Consultants, and Tenant shall be solely responsible for payment of all fees and/or payments due Tenants Design Consultants, Tenants architect (the Project Architect) and Tenants engineers must be licensed to practice his/her professional discipline in the State of Tennessee and shall be capable of providing appropriately stamped Construction Documents to local government officials for permit approvals. In connection with costs incurred in connection with the Work, Tenant shall not suffer or permit any mechanics liens or materialmens liens to be filed against the real property of which the Leased Space form a part or against the Tenants leasehold interest in the Leased Space.
3.2 Tenant and/or Tenants architect shall submit all Construction Documents to Landlord for Landlords approval. Upon receipt of each Construction Document, Landlord shall have five (5) days (or two (2) business days if The Innovations Group, LLC is the architect for the Work) to approve or deliver written comments regarding the Construction Documents to Tenant. If Landlord does not respond within such five (5) day period (or such two (2) business day period, as the case may be), each such Construction Document shall be deemed approved. Landlord may withhold its approval of any space plan, working drawings, plans and specifications, Change Order or other Construction Document for any reason it deems appropriate, including, without limitation, for any of the following reasons: any such space plan, working drawing, plans and specifications, Change Order or other Construction Document: (a) exceeds or adversely affects the structural integrity of the Building, or any part of the heating, ventilating, air conditioning, plumbing, mechanical, electrical or communication system, or any other Central system of the Building; (b) is not approved by the holder of any mortgage or deed of trust encumbering the Building at the time the Work is proposed; (c) violates any agreement which affects the Building or binds the Landlord; or (d) does not conform to applicable building code or is not approved by any governmental, quasi- governmental, or utility authority with jurisdiction over the Project. Tenant may authorize changes to the Tenant Improvements during construction subject to Landlords prior approval in accordance with this Section 3.2. Prior to commencing any change to the Work, the Tenant Improvements or any Construction Document, Tenant shall prepare and deliver to Landlord, for Landlords approval, a Change Order. If Landlord fails to approve such Change Order within five (5) days after delivery by Tenant (or two (2)
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business days if The Innovations Group, LLC is the architect for the Work), Landlord shall be deemed to have approved the proposed change. The Construction Documents are or shall be, without limitation, space plans, working drawings, plans and specifications, architects contract, construction contracts, construction schedules and cost proposals for the Tenant Improvements and shall set forth or describe, without limitation, the Tenant Improvements, the requirements for the construction of the Tenant Improvements on the Leased Space and the quality of materials and systems required for the Leased Space. The Construction Documents shall comply with local building codes, regulations and laws and include, without limitation, mechanical (heating, ventilating and air conditioning), fire protection, plumbing and electrical drawings and specifications. The Construction Documents shall be provided to Landlord in the following formats: two (2) sets of each such document and one CD-ROM disk containing the documents in the CAD format approved by Landlord.
3.3 Tenant shall be responsible to coordinate the efforts of Tenants Design Consultants to ensure that no delays are caused in the planning or construction of the Work. Tenant shall pay the cost of any construction delays caused by Tenants Design Consultants.
3.4 Tenant shall indemnify Landlord against any and all claims, demands, liabilities, losses and expenses, including, without limitation, consultant fees, court costs and reasonable attorneys fees, arising from or caused in whole or in part, directly and indirectly, from the acts or omissions of Tenants Design Consultants in, on and around the Leased Space and the Building or arising from the services rendered by Tenants Design Consultants. The foregoing indemnity obligations shall survive the expiration or earlier termination of the Lease and this Work Letter.
4. | Completion of Leased Space |
4.1 Not later than ten (10) days after the Lease is executed by both parties, Tenant shall inform Landlord in writing of the name of, and the contact information for, the contractor that Tenant wants to construct the Tenant Improvements in the Leased Space (Tenants Contractor). Thereafter, Tenant shall contract with Tenants Contractor for the construction of the Tenant Improvements.
4.2 All work involved in completion of the Work shall be carried out by Tenants Contractor, at Tenants sole expense under the directions of the Project Architect. Tenants Contractor must be licensed as a contractor to perform the Work in the city, county and state in which the Leased Space are located. Tenants Contractor must be approved in writing by Landlord prior to the commencement of the Work. Tenant covenants not to begin the contractor bidding process, if any, for the Work until the Construction Documents are approved by Landlord. Landlord shall cooperate with Tenant and Tenants Contractor to promote the efficient and expeditious completion of the Work. Tenant shall not, in connection with fees due to Tenants Contractor, suffer or permit any mechanics liens or materialmens liens to be filed against the real property of which the Leased Space forms a part or against the Tenants leasehold interest in the Leased Space.
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4.3 Upon receiving the consent from Landlord, Tenants Contractor may use the Final Space Plan and the Construction Documents.
4.4 During the Work, if there are any changes in the Work requested by or on behalf of Tenant, from the work as reflected in the Construction Documents, each such change must receive the prior written approval of Landlord, which approval shall not be unreasonably withheld or delayed, and must be paid for by Tenant, but which shall be subject to payment under the Allowance. Any dispute with respect to the Work shall be conclusively resolved by the Project Architect.
4.5 Prior to commencing the construction of the Work, Tenant must have the following insurance policies:
(a) | Commercial General Liability - Bodily Injury/Property Damage (occurrence basis), $1,000,000 each occurrence, or equivalent, subject to $2,000,000 aggregate . This policy shall be on a form acceptable to Landlord, endorsed to include Landlord as an additional insured, and state that this insurance is primary insurance as regards any other insurance carried by Landlord, and shall include the following coverage: Leased Space/Operations; Independent Contractors; completed operation for a period of two (2) years following the date of the final completion of the Work; Broad Form Contractual Liability; Broad Form Property Damage; and Personal Injury Liability with employees and contractual exclusions removed. |
(b) | All Risk Builders Risk Insurance - Prior to commencement of the Work, Tenants Contractor shall obtain on a policy acceptable to Landlord, and thereafter at all times during the performance of the Work maintain All Risk Builders Risk Insurance insuring the interest of Landlord and Tenants Contractor, as their interests may appear, set forth in the single policy, written on the completed value basis in an amount not less than the Construction Costs and all authorized change orders. |
(c) | Comprehensive Automobile Liability - Bodily Injury/Property Damage $500.000 per occurrence, single limit . This policy shall be on a standard form written covering all owned, hired and non-owned automobiles. This policy shall be endorsed to include Landlord as an additional insured and state that this insurance is primary as regards any other insurance carried by Landlord. |
(d) | Workers Compensation . Tenants Contractor shall maintain during the construction period, statutory workers compensation insurance as required by applicable law for all of Tenants Contractors employees or workers at the site of the work. In case any work is sub-contracted, Tenants Contractor shall require all of its subcontractors or agents to provide workers compensation insurance for all its employees. |
(e) |
Umbrella Liability Insurance . Tenants Contractor shall furnish umbrella excess liability insurance coverage on a policy acceptable to Landlord, |
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providing coverage in excess of the limits specified above (except for workers compensation). Such policy shall have the same inception and expiration dates as the underlying liability policies and coverage not less broad than those in the primary policies. Minimum limits shall be: $2,000,000 each occurrence; and $5,000,000 annual aggregate. |
4.6 Prior to commencing and at all times during the construction of the Work, Tenant must have the following surety bonds:
(a) | Performance Bond . Tenant shall cause Tenants Contractor, as principal, to obtain and keep in effect a bond ensuring its full performance in accordance with the Construction Documents. Landlord shall be named as the obligee of the performance bond. The performance bond shall comply with the laws of the State of Tennessee in all respects, be issued by a surety authorized to furnish such instruments, and otherwise be in a form reasonably acceptable to Landlord. The penal sum of the performance bond shall be 100% of the anticipated cost of constructing the Work. Upon Landlords request, Tenant shall provide Landlord with written evidence of Tenants Contractor compliance with this Section; and |
(b) | Payment Bond . Tenant shall cause Tenants Contractor, as principal, to obtain and keep in effect a bond insuring its full payment of all subcontractors and suppliers in connection with the Work. Landlord shall be named as the obligee of the payment bond. The payment bond shall comply with the laws of the state in which the Leased Space are located in all respects, be issued by an surety authorized to furnish such instruments, and otherwise be in a form reasonably acceptable to Landlord. The penal sum of the payment bond shall be 100% of the anticipated cost of constructing the Work. Upon Landlords request, Tenant shall provide Landlord with written evidence of Tenants Contractors compliance with this Section. |
4.7 Tenant shall be responsible for the cost of repairing any damage to the Building core and shell caused by Tenant or Tenants Contractor. Such repairs shall be made under the supervision of Landlords architect.
4.8 Prior to commencing the Work, Tenant shall cause Tenants Contractor to deliver to Landlord the Access Agreement, in the form attached hereto as Schedule 1 , duly executed by Tenants Contractor, governing access and security to the Building.
4.9 Tenant shall be solely responsible for making all payments due to Tenants Contractor. In the event of a default by Tenants Contractor, Tenant shall be responsible for payment of all construction costs to complete the Work.
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4.10 If Tenants Construction Work is not substantially completed by August 15, 2007 or not constructed by Tenants Contractor in accordance with the Construction Documents, in Landlords discretion (after a reasonable opportunity to cure), or Tenants Contractor shall be in breach of the Access Agreement (after a reasonable opportunity to cure), then Landlord shall have the right to deny access to the Building to Tenants Contractor. In such case, Landlord shall have the right to retain another contractor, at Tenants cost to complete the Work.
4.11 The Allowance shall be paid by Landlord to Tenant not more frequently than monthly as the Work progresses. It is a condition precedent to each disbursement of the Allowance that Tenant provide Landlord with an invoice for the desired draw, stating the dollar amount requested and the work for which payment is requested, together with evidence (such as a certification of the Project Architect) that such work has been performed and billed by Tenants architects, engineers, contractors, or other service providers. Each request for disbursement shall also include signed lien releases from Tenants Contractor and subcontractors for that portion of the Work for which Tenant is requesting reimbursement. Notwithstanding the foregoing, Landlord will not advance funds from the Allowance in excess of the then estimated completion level for the Work, as determined by Landlord in Landlords reasonable discretion [For example, the total Allowance is $100,000.00. Tenant submits an invoice for $20,000.00 of the Work (the First Request Work). Landlord determines that the Work is 10% complete after the First Request Work. Accordingly, assuming Tenant complies with the other provisions of this Section 4.11 and this Lease, Landlord would make a payment of $10,000.00 to Tenant for the First Request Work (10% of $100,000.00).] Notwithstanding the foregoing, the amount paid by Landlord to Tenant for a draw request will not exceed the amount of Tenants draw request. Nothing in this subsection shall make any architect, engineer, contractor or other service provider a third party beneficiary of the Allowance, and Tenant shall remain solely responsible for making all payments to them in connection with any work done for Tenant.
4.12 Within ten (10) days after the Work is substantially completed, Tenant shall cause Tenants architect to deliver to Landlord complete as-built drawings of the Work. Such plans may not be used in connection with the design of other suites in the Building or otherwise without the prior written approval of Tenant and Tenants architect. Such plans shall become the property of Landlord but may be used only to maintain and operate the Building. Also, within such ten (10) day period, Tenant shall cause Tenants Contractor to perform the following: (a) delivery to Landlord of signed lien releases from each of Tenants contractors and subcontractors; (b) issuance of a certificate of occupancy on the interior improvements of the Leased Space by the appropriate governmental authority; and (c) delivery of an assignment of construction warranties to Landlord by Tenant.
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4.13 The failure by Tenant to perform any of its duties hereunder shall constitute an Event of Default under the Lease.
Executed as of the date above first written.
LANDLORD: | ||
PCC INVESTMENTS II, LLC | ||
By: |
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Title: |
MANAGING PARTNER |
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TENANT: | ||
FRANKLIN FINANCIAL NETWORK, INC. |
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By: |
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Title: |
Founder |
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Schedule 1
The Access Agreement
Building Name: Aspen Brook Village (Building)
Building Address: 3301 Aspen Grove Drive, Franklin, Tennessee
Building Owner: PCC Investments II, LLC (Landlord)
Property Manager: (Property Manager)
Tenant Name: Franklin Financial Network, Inc. (Tenant)
Tenants Suite or Leased Space description: Suites 106,107 and 108 (the Leased Space)
Contractor Name: (Contractor)
CONTRACTOR HAS BEEN ENGAGED TO PERFORM CERTAIN TENANT IMPROVEMENTS TO THE LEASED SPACE IN CONNECTION WITH TENANTS USE AND OCCUPANCY OF THE LEASED SPACE PURSUANT TO A LEASE AGREEMENT WITH LANDLORD. BY EXECUTING THIS AGREEMENT, CONTRACTOR AGREES TO (A) PERFORM CONTRACTORS WORK IN ACCORDANCE WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT, (B) REQUIRE ITS SUBCONTRACTORS, IF ANY, TO SIGN AND DELIVER TO LANDLORD AND PROPERTY MANAGER, IF ANY, A DUPLICATE OF THIS AGREEMENT, AND (C) CAUSE ITS SUBCONTRACTORS TO COMPLY WITH THE TERMS AND PROVISIONS OF THIS AGREEMENT.
BUILDING ACCESS AND SECURITY:
1. | Access to and use of existing facilities and site will be restricted and shall be under the direction and control of Landlord and Property Manager, if any. Landlord and Property Manager, if any, must be notified at least 24 hours prior to commencement of construction. Contractor shall present Landlord or Property Manager, if any, with a current Certificate of Liability Insurance covering its planned operations within the Building and a building permit for the work prior to the start of operations. |
2. | Contractor is to contact Landlord or Property Manager, if any, if contact or scheduling with Building security and engineering is required in order to construct any improvements in the Leased Space. Landlord, in Landlords sole discretion, may require that Building security be on duty during after hours work (as defined in Item 8 below). It will be necessary to have Building engineering present to coordinate any tie-in to existing Building systems. Contractor will pay the cost of after hour security (if required by Landlord) and engineering. |
3. |
All new door hardware shall conform to the Building standards. All door hardware not conforming to the Building standards shall be removed and replaced at Contractors sole expense. Temporary construction change keys |
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shall be employed during Contractor operations. Landlord or Property Manager, if any, shall have a copy of all such keys so that access to all areas of the Building are available to Landlord or Property Manager, if any. Following completion of construction, Landlord or Property Manager, if any, shall permanently key the space. Contractor shall deliver to Landlord and Property Manager, if any, all construction change keys in its/their possession at that time. |
4. | Contractor shall consult with Landlord or Property Manager, if any, about the use of Building utilities for construction use. Under no circumstances shall Contractor use Building electrical service, water service, gas service or any other utility, if any, for construction purposes without the prior consent of Landlord or Property Manager, if any. Without such consent and approval by Landlord or Property Manager, if any, Contractor shall be responsible for providing all temporary utilities necessary for construction. |
5. | Contractor shall utilize the designated loading dock/delivery zone as necessary for loading and unloading of equipment and supplies and shall promptly (within two hours) remove all vehicles from the delivery zone and park only in areas that have been designated for Contractors use by Landlord and Property Manager, if any. All vehicles violating the above policy shall be towed at Contractors expense. Contractor shall enter the Building via the freight/service Building entrance and shall only utilize the elevator designated for Contractor use by Landlord or Property Manager, if any. Protective pads shall be installed and used in the elevator at all times during Contractors use of the equipment. Contractor shall protect all Building core and shell flooring with 5 mill polyethylene sheets with an adhesive on one side. |
6. | If Contractor requires removal of exterior windows/doors to move required materials/equipment into the Building, Contractor shall contact Landlord or Property Manager, if any, in advance of such operations to gain its/their approval. |
7. | Contractors designated representative shall check in and out with Property Manager on a weekly basis. |
8. | Contractor shall schedule all after hours/weekend work with Landlord or Property Manager, if any, 24 hours prior to arrival to perform such work. After hours work shall mean any work that will take place (a) prior to 7 a.m. or after 7 p.m. Monday through Saturday or (b) on a national holiday. (See item 12 below for rules regarding after hours work). Building security will not permit after hours access to Contractor if such Contractors work has not been properly scheduled, except that unscheduled access shall be permitted to correct circumstances which may threaten imminent danger to the Leased Space, the Building or the Buildings occupants. |
9. | Landlord and Property Manager, if any, shall not be held responsible for loss, damage or theft of Contractors tools, equipment, materials, supplies, etc. |
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10. | A 24-hour telephone answering machine service or pager should be maintained by Contractor to allow for 30-minute reply time for request from Landlord and Property Manager, if any. Names and telephone numbers (including after-hours numbers) of Contractors superintendent/foreman shall also be made available to Landlord and Property Manager, if any, prior to start of the work. |
11. | The following categories of work and such other categories as Landlord and/or Property Manager shall determine in the future shall be performed as after hours work: access to an adjacent tenant suite to perform work; core-drilling, use of shot-driven pins, use of chipping hammers, use of any other tools or equipment that, in the opinion of Landlord and Property Manager, if any, produce excessive noise and/or vibration, any work that creates noxious fumes or odors in areas outside the Leased Space, any work involving utility taps, connections or the like which would interrupt services for existing tenants. If any Contractor operations, in the opinion of Landlord and Property Manager, if any, present a disruption to tenant services and operations, Landlord and Property Manager, if any, shall contact Contractor and inform its to cease operations immediately. Contractor shall comply with this order and coordinate with Landlord and Property Manager, if any, on resumption of activities. If any additional cost results from these requirements Contractor will be responsible for such cost. |
SAFEGUARDS TO LEASED SPACE AND PROPERTY:
1. | Contractor shall take proper precautions to protect all existing operations and property in the Building with which its work comes in contact, or over which it must transport, hoist or move materials, equipment, debris, etc. Contractor shall repair, to Landlords satisfaction, all damages caused by Contractor in the Building during construction connected with any improvements constructed on the Leased Space. Contractor shall bear the sole burden for such costs. |
2. |
Contractor shall coordinate all Fire Alarm System and Fire Sprinkler system related work with, Landlord or Property Manager, if any. No Fire Alarm System or Fire Sprinkler System related work will be performed until proper steps have been taken to secure that false alarms will not sound, that adequate Building protection will be maintained, and that the proper agencies have been notified of Fire Safety System down time. Contractor also will coordinate with Landlord or Property Manager, if any, for the proper restoration of Fire Alarm Systems or Fire Sprinkler Systems to normal operation once work is complete. Under no circumstances shall Contractor leave the Building until all Fire Alarm Systems and Fire Sprinkler Systems affected by Contractors work have been restored to normal operating status. Contractor shall take adequate steps to prevent false alarms or other unnecessary alarms that occur as a direct or indirect result of its work within the Building. These steps shall include protection of smoke detection devices |
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from smoke, dust, and debris during construction, use of sweeping compound when sweeping floors to avoid dust, and proper precautionary measures taken when working around other alarm initiating devices such as pull stations, water flow detectors, and fire safety related power sources. All work that, for any reason, may activate the Fire Alarm System must be first reported to Landlord and Property Manager, if any, so that appropriate measure may be taken to prevent a false alarm. Such work includes, but is not limited to, welding, sawing, sweeping, painting, soldering, brazing, etc. Contractor shall pay any fines or penalties levied by fire departments for false alarms caused by Contractors negligence or failure to adhere to the requirements of this Agreement. |
3. | Contractor shall observe the following fire safety precautions at all times: |
a. | An approved fire extinguisher must be within reach of all welding/brazing work or other open flames. |
b. | Acetylene, oxygen, or other types of pressurized gas bottles must be in an upright position and strapped to an immovable object to prevent the bottle from falling. |
c. | When arc welding, protective shields must be placed around the work to shield others from eye damage. |
d. | Contractor shall not use frayed, damaged, or improperly rated power cords and shall not string power cords across walk areas. |
e. | No flammable liquids may be brought into the Building without Landlord and Property Manager, if any, approval, or stored in the Building overnight. |
f. | Contractor shall maintain a one-hour rated separation between the area under construction and the rest of the Building at all times. Tenant demising walls and corridor walls shall serve this purpose. |
4. | During construction in the Leased Space, the main entrance door to the Leased Space should always be left unlocked. Contractor is responsible for their own tools and materials. |
5. | At all hours that construction personnel are working within the Leased Space, the main door to the Leased Space shall remain unlocked. After construction has been completed for the day, Contractor shall secure the Leased Space and lock the main door. |
6. | Contractor shall not under any circumstances leave materials and/or equipment unattended in public Building areas. |
7. | Contractor is responsible for clearing all debris from the Building core and shell areas each evening. |
8. | Contractor is responsible for the supply, maintenance and changing of air duct pre-filters and VAV filters in the designated working area. At the end of construction and after final cleaning, Contractor is responsible to clean any return air ducts and the inside of the air handler serving the space where the work was performed. |
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STANDARDS AND CONDUCT:
1. | Contractor is to provide to Landlord and Property Manager, if any, and pay all fees for all permits inspections, occupancy certificates, maintenance, and operations manuals, equipment warranties, and such other similar items necessary or resulting from the improvements constructed by it in the Leased Space. |
2. | Should Contractor perform any work that does not comply with the requirements of applicable codes and standards, Contractor shall bear all costs of correcting such defects. |
3. | Contractor must maintain existing plumbing, heating, air conditioning, fire protection, and other existing systems, and must retain all existing functions in service except for scheduled disruptions. All such disruptions of system functions must be scheduled with Landlord and Property Manager, if any, at least 24 hours in advance. No unscheduled disruptions are services are allowed. |
4. | All work involving core drilling, spraying, or other functions that may cause disrupting noise, fumes, or odor, or result in necessary access to any occupied tenant space, must be approved by Landlord and Property Manager, if any, and be performed after normal business hours or on weekends. |
5. | All penetrations of piping, duct work, conduits, etc. through walls, partitions, and floors shall be sealed to comply with applicable codes and the satisfaction of Landlord and Property Manager, if any, to maintain the integrity of Buildings fire safety rating. Also, any openings in walls and partitions made by Contractor for access to construction work shall be patched and/or repaired to comply with applicable codes and maintain existing fire ratings and meet the satisfaction of Landlord and Property Manager, if any. All core drills pieces are to be removed by Contractor. |
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6. | It shall be the responsibility of Contractor to cooperate fully with other contractors working within the Building, if any, to keep the Leased Space in a clean and safe condition. At the end of each days work, Contractor shall properly store all of its tools, equipment, and materials and shall clean up its debris from the Building core and shell. Contractor shall provide a final clean up of any job areas of the Building core and shell that were affected by the Contractors work including walls, light fixtures, windowsills, counters, cabinets, floors, etc. |
a. | Temporary walk-off mats shall be provided by Contractor, as required, at all construction entrances to the Building. Polyethylene sheets a minimum 5 mill with an adhesive on one side shall be employed by Contractor to protect existing Building common area (lobbies and public corridors) flooring surfaces during construction operations. |
b. | Sweeping compound will be used when sweeping to minimize and control dust. Failure to use sweeping compound will result in the mandatory halting of work as enforced by Property Manager. |
c. | Contractor is responsible for removing all construction debris from the site. The Buildings trash container (dumpster) will not be used for construction debris. Contractor shall discuss a trash removal plan with Landlord or Property Manager, if any, prior to the start of construction and obtain the approval of Landlord and Property Manager, if any. Under no circumstance shall any of the shell Building exterior windows be removed to facilitate the installation of a trash chute without prior approval by Landlord or Property Manager, if any. Contractor must furnish a trash receptacle and locate it in a location that is acceptable with Landlord and Property Manager, if any. Contractor will be back-charged for unauthorized use for Buildings trash facility. |
d. | Contractor should protect miniblinds/vertical blinds during construction. (This should be accomplished by either taking down the blinds or raising them to the top of the window and putting plastic over them.) |
7. | Contractor shall not utilize electrical/telephone rooms, mechanical rooms, or other unauthorized Building or parking areas for storage of tools, equipment, materials, supplies, etc. |
8. | Under no circumstances are public toilet facilities to be used. Contractor, in a location approved by Landlord and Property Manager, if any, will install approved facilities. |
9. | Contractor shall not lounge or eat in the Building lobbies, hallways, or stairwells. Breaks may be taken in either the assigned work area, or common areas such as a restaurant or snack bar. ALL TENANT SPACES ARE OFF LIMITS. TENANTS SHALL NOT BE DISTURBED. |
10. | Loud noises, radios, stereos, etc. are prohibited. |
11. | The use of tobacco, alcohol and drugs are prohibited in the Building. |
12. | Cursing, rough housing, leering and other objectionable conduct shall result in the immediate halting of work and expulsion of the responsible individuals from the Building. |
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13. | Contractor shall notify the Landlord or Property Manager, if any, at least five (5) days in advance of completion of Contractors work so that Landlord or Property Manager, if any, may schedule and perform a final inspection. |
14. | Equipment installed by Contractor shall match all existing equipment in the Building (including, but not limited to, thermostats, mixing boxes, diffusers, lights, plumbing fixtures, doors and hardware, ceiling lay-in pads, VAV units). |
15. | All work shall be bonded at 100 % of the cost of the work. |
16. | Landlord shall be named an additional insured on Contractors insurance policy. |
17. | Contractor shall comply with all applicable laws or regulations regarding safety, including without limitation, the Federal Occupational Safety and Health Acct of 1970, as amended from time to time. |
18. | Contractor shall not clean any equipment in Building utility closets, restrooms, etc. Contractor, subcontractors, etc. shall not dump any material in hoppers, toilets or drains of any kind. |
19. | Contractor shall not use tools, ladders, lights, supplies, etc. owned by Landlord. |
20. | Contractor shall maintain on site MSDS information for any product used by Contractor or any subcontractor during the course of the work. |
GENERAL PROVISIONS, RELEASE OF LIABILITY AND INDEMNITY:
Contractor agrees to familiarize itself thoroughly with all site conditions, limitations, and regulations. The work shall be performed with the absolute minimum of interference with Landlords operation, and Contractor shall be subject to the reasonable directions of Landlord and Property Manager, if any, to enforce the same. Contractor shall use only authorized entrances, elevators, and storage areas as designated by Landlord and Property Manager, if any. Contractor shall secure and protect the work to be done hereunder and assume full responsibility for the condition thereof until finally accepted by Landlord or Property Manager, if any. Contractor shall be liable for any loss or damage to any work in place or any equipment or materials on the site caused by Contractor. Contractor shall provide adequate protection of all areas and keep all areas of use clean and free of debris and unacceptable noise levels. Contractor shall provide for removal of all trash and debris on a daily basis and, if the area is not maintained, Landlord or Property Manager, if any, has the right, with a 72 hour written notice, to employ its own forces to maintain the area and charge the cost to Contractor.
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Contractor hereby forever releases and discharges Landlord and Property Manager, if any, and their respective agents, officers and employees (collectively the Released Parties) from any and all liability that results from Contractors presence and work in and around the Building. Contractor agrees to indemnify and save harmless the Released Parties from any and all fines, suits, claims, damages, demands, losses and actions (including reasonable attorneys fees and costs) for any injury to person or damage to or loss of property on or about the Building or the land on which the Building is located. Notwithstanding anything to the contrary herein, Contractor shall not be required to defend, indemnify or hold Released Parties harmless for any damage or loss caused by the negligence or willful misconduct of Landlord or the Property Manager or their employees and agents.
CONTRACTOR: |
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(Print or Type Contractors Name) |
By: |
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EXHIBIT C
Base Rent
(1) | Base Rent shall be $24.50 / SF with an annual increase of 3.0% as follows: |
Annual Base Rent | Monthly Base Rent | |||||||
Months 1-12 |
$ | 110,838.00 | $ | 9,236.50 | ||||
Months 13-24 |
$ | 114,163.14 | $ | 9,513.59 | ||||
Months 25-36 |
$ | 117,588.03 | $ | 9,799.00 | ||||
Months 37-48 |
$ | 121,115.67 | $ | 10,092.97 | ||||
Months 49-60 |
$ | 124,749.14 | $ | 10,395.76 | ||||
Months 61-72 |
$ | 128,491.61 | $ | 10,707.63 | ||||
Months 73-84 |
$ | 132,346.36 | $ | 11,028.86 | ||||
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Total Annual Base Rent due in Initial Term |
$ | 849,291.95 |
(2) | Tenant shall provide a security deposit at execution of the Lease in the amount of one (1) months rent, which shall be returned at the end of the Term, provided that Tenant has complied with and is not in default of the terms of the Lease (the Deposit). The Deposit is provided to secure Tenants obligations under this Lease and is not an advance payment of Base Rent or any other rent or a measure of Landlords damages for Tenants breach of this Lease. Without prejudice to any other remedy, Landlord may use the Deposit to pay any delinquent Base Rent or Additional Rent or to satisfy any of Tenants other obligations under this Lease. After any such use of the Deposit, Tenant shall pay to Landlord, within five (5) days after demand, the amount necessary to restore the Deposit to its full amount. Landlord will return the unused portion of the Deposit to Tenant within sixty (60) days after the expiration of the Term and Tenants surrender of the Premises to Landlord as herein required and provided there then exists no Event of Default, less any amounts that Landlord is entitled to deduct from the Deposit (and an accounting thereof shall be provided to Tenant). If bankruptcy or other debtor-creditor proceeds ever exist against Tenant, the Deposit shall be deemed to be applied first to the payment of any Rent due Landlord for all periods prior to the filing of such proceedings. |
(3) | A common area factor of 19% or 860 SF shall be added to cover the Common Area of the building. This shall be charged at the same rate scale as Base Rent. |
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EXHIBIT D
Additional Rent Calculation
Additional Rent for any calendar year shall be calculated based upon Tenants Prorata Share of the Operating Expenses for the applicable calendar year. Tenants Prorata Share is 19%.
1. Operating Expenses (herein so called) shall consist, subject to the Limitation of Operating Expenses provision of the Lease Addendum, of all costs and expenses of Landlord or its property management company (Manager) accrued each calendar year for the management, operation, repair, and maintenance of the Property, including without limitation, costs and expenses for the following in connection with the Property:
(a) Wages, salaries and compensation (including fringe benefits) paid or incurred for employees of Landlord or Manager.
(b) Materials, supplies, replacement parts, equipment, and tools (whether purchased or leased).
(c) Services rendered by third parties, including services to be provided by Landlord pursuant to the terms of the Lease.
(d) Utility costs and services, including electrical, gas, water and sewer (Common Areas), refuse or garbage collection, fire protection, and security services (if furnished).
(e) Insurance premiums and policy deductibles paid, including property and casualty, rent loss, and public liability insurance.
(f) Management fees not to exceed 4.5% of gross revenues.
(g) Accounting services.
(h) Expenditures required to be capitalized in accordance with generally accepted accounting principles that are either required under any governmental law or regulation that was not applicable to the Property at the time the Building was constructed or that are intended to reduce Operating Expenses.
(i) Taxes (herein so called) for each calendar year shall consist of all real estate taxes, assessments (whether for drainage, sewage, or other public improvements), taxes on rent or on occupancy or use of the Property, and similar government impositions now or hereafter levied or assessed, whether general or special, and whether imposed by any governmental entity or special taxing or assessment district (excluding, however, any income, franchise, or similar tax imposed directly on Landlord or landlords net income from the Property), together with all costs incurred by Landlord in contesting same. Notwithstanding the foregoing, Operating Expenses shall not include costs or expenses
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for: (i) except as otherwise provided above, expenditures required to be capitalized in accordance with generally accepted accounting principles, depreciation, or amortization, or interest, (ii) leasing commissions or brokerage fees, (iii) repairs reimbursed by insurance carried or required to be carried by Landlord, (iv) utilities and other services separately charged to tenants, or (v) the Tenant Improvements or renovations to premises of other tenants.
2. In calculating Operating Expenses, all costs except those charged directly to Tenant or other building tenants shall be determined on an annualized basis, and costs that vary with occupancy (such as Common Areas janitorial service and utilities) shall be appropriately adjusted to reflect Operating Expenses at 100% occupancy of the Building for a full calendar year. In calculating Additional Rent, all rates per rentable square foot shall be based on the greater of ninety-five (95%) of the net rentable are of the Building or the actual annualized occupancy of the Building.
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EXHIBIT E
Rules & Regulations
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies and other similar areas in the Common Areas of the Property shall not be used for the storage of materials or disposal of trash, obstructed by tenants or others, or used by tenants or others for any purpose other than entrance to and exit from tenant premises.
2. Plumbing fixtures shall be used only for the purposes for which they are designed, and no sweepings, rubbish, rags, or other unsuitable materials shall be disposed into them. Damage resulting to any such fixtures from misuse by a tenant shall be the liability of said tenant.
3. Movement in our out of the Building of furniture, equipment, or any other bulky or heavy materials shall be restricted to such hours as Landlords property manager shall reasonably designate. Landlords property manager will determine the method and routing of the movement of said items so as to ensure the safety of all persons and property concerned, and Tenant shall be responsible for all costs and expenses associated therewith. Advance notice of intent to move such items must be made to Landlords property manager before the time of such move.
4. All deliveries to a tenants premises shall be made through entrances, following routes and movement instructions within the Building as directed by Landlords property manager. Delivery vehicles shall be permitted only in such areas as are designated by Landlord for deliveries to the Building.
5. Landlords property manager shall have the authority to approve the proposed weight and location of any safes and heavy furniture and equipment, which shall if determined to be necessary by Landlords property manager, stand on supporting devices approved by Landlords property manager in order to distribute the weight.
6. Corridor doors that lead to Common Areas of the Building (other than doors opening into the elevator lobby on floors leased entirely to a tenant) shall be kept closed at all times.
7. Each tenant shall cooperate with Landlords property manager in keeping its premises neat and clean. No tenant shall employ any person for the purpose of such cleaning other than the Buildings cleaning and maintenance personnel without prior approval of Landlords property manager.
8. No birds, fish or other animals shall be brought into or kept in, on or about the Building (except for seeing-eye dogs).
9. Each tenant shall comply with all security procedures (if any) both during business hours and after hours and on weekends. Landlords property manager will provide each tenant with prior notice of any such security procedures and any changes thereto promptly.
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10. No flammable or explosive fluids or materials shall be kept or used within the Building except in areas approved by Landlord, and each tenant shall comply with all applicable building and fire codes relating thereto.
11. No vending machines of any type shall be allowed in tenant space without the prior written consent of Landlords property manager, consent to not be unreasonably withheld.
12. Tenant shall provide Landlord with a set of duplicate keys and/or control cards, as applicable, to the Premises.
13. No machinery of any kind other than normal office equipment shall be operated by any tenant in its premises without the prior written consent of Landlords property manager.
14. Canvassing, peddling, soliciting and distribution of handbills on the Property (except for activities within a tenants premises that involve only such tenants employees) is prohibited. Each tenant is requested to notify Landlord (or Landlords property manager) if such activities occur.
15. Prior approval from Landlords property manager will be required for (a) access to Building mechanical, telephone or electrical rooms, (b) after-hours freight elevator use, (c) after-hours Building access by tenants contractors, or (d) access to the room of the Building by any person. No penetration of the roof of the Building shall be allowed in any circumstances. The tenant will be responsible for contacting Landlords property manager in advance for clearance of such tenant contractors, and tenants shall refer all contractors, contractors representatives, and installation technicians rendering any service to them to Landlord for Landlords supervision, approval, and control.
16. Each tenant and their contractors are responsible for removal of trash resulting from large deliveries or move-ins. Such trash must be removed from the Building and Building facilities may not be used for dumping. If such trash is not promptly removed, Landlord (or Landlords property manager) may cause such trash to be removed at the tenants sole cost and expense plus a reasonable additional charge to be determined by Landlord to cover Landlords administrative costs in connection with such removal.
17. Tenants may not install, leave or store equipment, supplies, furniture or trash in the Common Areas of the Property.
18. Each tenant shall provide Landlords property manager with names and telephone numbers of individuals who should be contacted in an emergency.
19. Electric current shall not be used for space heaters, cooking or heating devices or similar appliances without Landlords prior written permission.
20. Nothing shall be swept or thrown into the corridors, halls, elevator shafts or stairways.
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21. No portion of any tenants premises shall at any time be used or occupied as sleeping or lodging quarters, nor shall personnel occupancy loads exceed limits reasonably established by Landlord for the Building.
22. No vehicles shall be parked except in designated areas. No vehicles may be stored or abandoned on the Property. All persons on the property shall comply with traffic control and parking signs.
23. Except as otherwise set forth in the Lease, no antennas (including microwave or satellite dish antennas) shall be placed on the roof of the Building or elsewhere on the Property without the prior written consent of Landlord. Tenant may install a satellite dish receiver for its own usage with approval of installation and location by Landlord.
24. Smoking is not permitted in the building, and is permitted outside the building only in areas designated by Landlord.
Landlord reserves the right to amend and add to these rules as Landlord considers appropriate for the safety, care, maintenance, operation, and cleanliness of the Building, and for the preservation of good order therein. If any of these rules directly contradicts the other terms of the Lease, the terms of the Lease shall prevail.
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EXHIBIT F
Lease Authorization
(A) | Landlord hereby represents to Tenant: |
(1) Landlord has been duly established and is validly existing as an LLC under the laws of the State of Tennessee.
(2) This Lease has been authorized by all necessary action, has been executed and delivered by Landlord, and constitutes the legal, valid and binding obligations of Landlord, enforceable in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought.
(3) To the best of Landlords knowledge, the authorization, execution and delivery of this Lease do not, and the consummation of the transactions contemplated thereby and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time or both) under, any provision of any trust agreement, loan or credit agreement, note, bond, mortgage, deed of trust, indenture, lease or other agreement, permit, concession, franchise, license, judgment, order, decree by which Landlord or the Premises may be bound, nor to the best of Landlords knowledge will such action conflict with or result in any violation or default (with or without notice or lapse of time or both) under any statute, law, ordinance, rule or regulation by which Landlord or the Premises may be bound.
(4) As of the date hereof, to the best of Landlords knowledge no action, consent, approval, order of authorization of, or registration, declaration or filing with, any federal or state governmental body or agency is required in connection with the execution and delivery by Landlord of the Lease or the consummation by Landlord of the transactions contemplated hereby.
(B) | Tenant hereby represents to Landlord: |
(1) Tenant has been duly established and is validly existing as a corporation under the laws of the State of Tennessee.
(2) This Lease has been authorized by all necessary action, has been executed and delivered by Tenant, and constitutes the legal, valid and binding obligations of Tenant, enforceable in and in accordance with its to except as enforcement may be limited by bankruptcy, insolvency and other similar laws affecting the enforcement of creditors rights generally and except that the availability of equitable remedies, including specific performance, is subject to the discretion of the court before which any proceeding therefor may be brought.
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(3) To the best of Tenants knowledge the authorization, execution and delivery of this Lease do not, and consummation of the transactions contemplated thereby and compliance with the terms hereof will not, conflict with, or result in any violation of or default (with or without notice or lapse of time or both) under, any provision of any trust agreement, loan or credit agreement, note, bond, mortgage, deed of trust, indenture, lease or other agreement, permit, concession, franchise, license, judgment, order, decree by which Tenant is a party or by which Tenant may be bound, nor to the best of Tenants knowledge will such action conflict with or result in any violation or default (with or without notice or lapse of time or both) under any statue, law, ordinance, rule or regulation by which Tenant may be bound.
(4) As of the date hereof, to the best of Tenants knowledge no action, consent, approval, order of authorization of, or registration, declaration or filing with, any federal or state governmental body or agency is required in connection with the execution and delivery by Tenant of this Lease or the consummation by Tenant of the transactions contemplated hereby.
TENANT: | ||
Franklin Financial Network, Inc. | ||
A Tennessee Corporation | ||
By: |
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Title: |
Founder |
LANDLORD: | ||
PCC Investments II, LLC | ||
A Tennessee Limited Liability Company | ||
By: |
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Title: |
MANAGING PARTNER |
Tenants Notification Address: | Landlords Notification Address: | |
Franklin Financial Network, Inc. | PCC Investments II, LLC | |
2000 Mallory Lane | 3310 Aspen Grove Drive Suite 302 | |
Suite 130-120 | Franklin, Tennessee 37067 | |
Franklin, TN 37067-9231 | 615 773 8828 |
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EXHIBIT G
Irrevocable Letter of Credit
(PRINT ON LETTERHEAD OF ISSUER)
IRREVOCABLE STANDBY LETTER OF CREDIT NO:
BENEFICIARY: | CUSTOMER: | |
PCC Investments II, LLC | Franklin Financial Network, Inc. | |
Amount: $128,479.00 | Date: May 15, 2007 | |
Expiration Date: May 15, 2008 |
Dear Sir or Madam:
(Issuer) hereby establishes in favor of PCC Investments II, LLC (Beneficiary), for the account of Franklin Financial Network, Inc. (Customer), our Irrevocable Letter of Credit in the amount of One Hundred Twenty Eight Thousand, Four Hundred Seventy Nine and 00/100 U.S. Dollars ($128,479.00).
The funds requested shall be available for payment upon presentation by Beneficiary of this Irrevocable Letter of Credit, a sight draft in an amount not exceeding $128,479.00 and the following:
1. | A statement signed by Beneficiarys authorized agent in the form attached hereto as Exhibit A certifying, among other things, that Customer is in default of one or more of its obligations to Beneficiary pursuant to that certain Lease Agreement dated as of , 2007, between Customer and Beneficiary pertaining to real property located in the office building known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, Suites 106-108. |
Issuer hereby promises to Beneficiary that any drafts drawn under or in substantial compliance with terms of this Irrevocable Letter of Credit will be duly honored if presented to Issuer on or before May 15, 2008.
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This Irrevocable Letter of Credit is subject to the Rules on International Standby Practices-ISP 98, International Chamber of Commerce Publication No. 590 (ISP98), and to the extent not inconsistent with ISP98, the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500.
ISSUER: |
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Authorized Signer |
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EXHIBIT A
To
Irrevocable Letter of Credit
[Issuing Bank Name]
[Issuing Bank Address]
Re: Irrevocable Standby Letter of Credit No.
PCC Investments II, LLC (Beneficiary) hereby certifies that (a) Franklin Financial Network, Inc. (Customer) and Beneficiary are parties to that certain Lease Agreement dated as of , 2007 pertaining to real property located in the office building known as Aspen Brook Village, 3301 Aspen Grove Drive, Franklin, Tennessee, Suites 106-108 (the Lease), (b) Customer is in default of one or more of its obligations to Beneficiary arising under the Lease (other than the non-monetary default described in Section 18(b) thereof), (c) Beneficiary has given Customer written notice of such default or defaults, to the extent required upon the Lease, and (d) Customer failed, within ten (10) days of its receipt of such notice, to cure the default or defaults as described in such notice.
Should you need any other information from Beneficiary in regards to the above-mentioned Irrevocable Letter of Credit, please do not hesitate to call me at .
Sincerely, | ||
PCC Investments II, LLC | ||
Name: |
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Title: |
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Exhibit 10.15
MERCHANTS WALK
SHOPPING CENTER LEASE
ARTICLE 1 | PARTIES |
This Lease, dated as of this 20th day of April, 2010, is made by and between Edwin B. Raskin Company, a Tennessee corporation, as agent for SIG, LLC, a Tennessee limited liability company (Landlord) and Franklin Synergy Bank, a Tennessee corporation(Tenant).
ARTICLE 2 | PREMISES |
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord certain space known as 4930 Thoroughbred Lane and designated as space C-1 (Premises), and which shall, for the purpose of this Lease, be deemed to contain 3,124 gross square feet of rentable area and the related drive-thru banking facility adjacent to the Premises, as generally depicted and described on the site plan attached hereto as Exhibit A, together with all banking equipment and fixtures presently located within the Premises. The Premises are situated in a building (Building) in a shopping center known as the Merchants Walk (Center), located on Thoroughbred Lane, Brentwood, Tennessee 37027, as more particularly described on Exhibit B hereto.
ARTICLE 3 | TERM AND LEASE YEAR |
A. TERM. This Lease shall be for a term (Term) of thirty-six (36) months, commencing July 1, 2010 (Commencement Date). All rental and other charges due hereunder shall accrue from the Commencement Date.
ARTICLE 4 | RENT AND OTHER CHARGES |
A. MINIMUM RENT. Tenant agrees to pay to Landlord as minimum rent (Minimum Rent) as follows:
RENT PERIOD |
RATE | MONTHLY RENT | ANNUAL RENT | |||||||||
July 2010-June 2011 |
$ | 18.00 | $ | 4,686.00 | $ | 56,232.00 | ||||||
July 2011-June 2012 |
$ | 19.00 | $ | 4,946.33 | $ | 59,356.00 | ||||||
July 2012-June 2013 |
$ | 20.00 | $ | 5,206.67 | $ | 62,480.00 |
Tenant agrees to pay the Minimum Rent, without notice or demand, in advance, on or before the first (1st) day of each and every successive calendar month during the Term. Rent for any period less than one (1) month shall be prorated based on the number of days in such month. All payments of rent (including Minimum Rent, Adjustments, and additional rent) and other charges owed by Tenant under this Lease shall be made by Tenant at the office of Edwin B. Raskin Company, 5210 Maryland Way, Suite 300, Brentwood, Tennessee 37027 or at such other place as Landlord may designate, in lawful money of the United States of America and without deduction, abatement, or offset. No termination of this Lease prior to the normal ending thereof shall affect Landlords right to collect rent for the period prior to termination.
B. PERCENTAGE RENTAL. THIS SECTION INTENTIONALLY DELETED.
C. EXTRA RENT. THIS SECTION INTENTIONALLY DELETED.
D. SECURITY DEPOSIT.
Upon execution of this Lease, Tenant shall deposit with Landlord the sum of Six Thousand Dollars ($6,000.00). Said sum shall be held by Landlord as security for the faithful performance by Tenant of all the terms, covenants, and conditions of this Lease, If Tenant defaults with respect to any provision of this Lease, Landlord may apply all or any part of this security deposit for the payment of any rent or any other sum due hereunder, for payment of any amount which Landlord may spend by reason of Tenants default,
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or for the compensation of Landlord for any other loss or damage suffered by reason of Tenants default. If any portion of said deposit is so applied, Tenant shall, upon demand, deposit cash with Landlord in an amount sufficient to restore the security deposit to its original amount. Landlord shall not be required to keep the security deposit separate from its general funds, and Tenant shall not be entitled to interest on such deposit. If Tenant is not then in default, the security deposit or any balance thereof shall be returned to Tenant within ten (10) days following the date on which the final payment is due under this Lease or expiration of the Term, whichever is later.
E. ADDITIONAL RENTAL ADJUSTMENTS.
In addition to all charges described in this Lease, Tenant shall pay to Landlord as additional rent Tenants Proportionate Share as herein defined of the following items (Adjustments):
(1) All real estate taxes and assessments that are levied upon and/or assessed against the Center (which includes land, buildings and improvements thereon);
(2) All insurance premiums paid by Landlord on the Center, including but not limited to, premiums for fire and extended coverage, sign insurance, rent loss, and liability insurance.
(3) All reasonable costs and expenses of every kind and nature incurred by Landlord in operating, decorating, painting, lighting, maintaining, repairing and replacing the Common Areas, as herein defined, in the manner deemed appropriate by Landlord (Common Area Costs). Common Area Costs shall include, without limitation: the cost of security and fire protection services, if provided; gardening and landscaping; repairs and painting; decorating and redecorating the Common Areas; striping, sweeping and lighting (including the cost of electricity and maintenance and replacement of fixtures and bulbs); regulating traffic; rubbish, garbage and other refuse removal; ice and snow removal; machinery equipment and supplies used in the operation and maintenance of the Common Areas and facilities; depreciation of machinery and equipment used in the operation and maintenance of the Common Areas; repair and replacement of paving, curbs and walkways; utility and drainage fees and water charges; the cost to Landlord of personnel to implement and perform the operation, maintenance and repairs of the Common Areas as provided above (including Workers Compensation Insurance covering such personnel); plus an amount equal to fifteen percent (15%) of the sum above to cover the cost of administering the same.
Tenant may request an audit of Landlords records concerning Common Area Costs. Any such audit must be at Tenants sole expense and at a reasonable time and place.
In the event the Premises are assessed as a separate parcel for the payment of real estate taxes, if the Premises are separately insured, or, if any utilities to the Premises are separately metered, Tenant shall pay the taxes, insurance premiums, and/or utility charges directly attributable to the Premises rather than paying Tenants Proportionate Share of an all-inclusive figure for such taxes or utility charges.
Tenants Proportionate Share shall be 6.5 percent, calculated by dividing the area of the Premises by the gross leasable area of the Center (3,124 divided by 48,152). Should the size of the Center change (Article 7, Paragraph A), so would the Tenants Proportionate Share be revised.
The initial estimated monthly amounts of Tenants Proportionate Share of the Adjustments are as follows:
(1) | Real estate taxes: $445.00 |
(2) | Insurance premiums: $30.00 |
(3) | Common Area Costs: $847.00 |
(4) | Water Usage: $50.00 |
Tenant shall pay the Adjustments monthly together with its Minimum Rent payments and shall continue to make said monthly payments until notified by Landlord of any change in the amount thereof. By April 1 of each year, Landlord shall give Tenant a statement showing the total Adjustments for the Center for the prior calendar year and Tenants allocable share thereof, and appropriate adjustments shall be made within ten (10) days.
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F. LATE CHARGES. If any installment of rent or any sum due from Tenant shall not be received by Landlord within five (5) days from the date upon which such amount is due, then Tenant shall pay to Landlord a late charge equal to five percent (5%) of the past due amount and a like amount for each month or partial month thereafter any amount remains unpaid, plus any attorneys fees or court costs incurred by Landlord by reason of Tenants failure to pay such rent when due. Tenant acknowledges that such late charge is not a penalty, but is to compensate Landlord for the additional administrative expenses and other expenses incurred by Landlord in handling delinquent payments (which expenses are not readily ascertainable), and is in addition to, not in lieu of, any other remedies that Landlord may have by virtue of Tenants failure to make payments when due.
G. INTEREST. Interest shall accrue and be paid by Tenant to Landlord on any payment of rent (including Minimum Rent, Adjustments, and additional rent) and other charges owed hereunder not received by Landlord on or before the date upon which the same becomes due at the base or prime rate published from time to time in the Wall Street Journal (or if this publication is discontinued, a comparable base or prime rate selected by Landlord) plus three (3) percentage points per annum, but in no event in excess of the maximum formula rate permitted under applicable law from time to time, from the date such payment was due to and including the date such payment is received by Landlord.
ARTICLE 5 | USE AND CONSTRUCTION |
A. USE. Tenant shall use and occupy the Premises exclusively for a full-service bank branch and/or loan production office and for no other purpose without the prior written consent of Landlord which consent shall not be unreasonably withheld. Landlord may withhold its consent for any alternate use of the Premises which would be in conflict with the exclusive use provisions of any other tenant lease in the Center or for any use which would be competition with the business of any other tenant in the Center. Landlord makes no warranty, express or implied, with respect to Tenants use of the Premises. The Premises shall not be used for any illegal purposes, in any manner to create any nuisance or trespass, nor in any manner to vitiate the insurance or increase the rate of insurance on the Premises. Tenant shall comply with, and shall not permit or suffer anything to be done in or about the Premises in violation of any law, statute, ordinance or governmental rule or regulation now in force or hereafter arising. Tenant shall not abandon or vacate the Premises during the Term of this Lease and shall use the Premises only for the aforesaid purposes herein leased until the expiration of the Term hereof.
B. COMPLIANCE WITH ENVIRONMENTAL LAWS. Tenant shall comply with all applicable laws, rules and regulations (collectively Environmental Laws) of all governmental authorities relating to environmental matters, hazardous wastes and hazardous substances and similar matters in the use and occupancy of the Premises under this Lease. Tenant shall not cause or permit any hazardous waste, hazardous or toxic substance or other similar substance (collectively Hazardous Matter) to be brought upon, kept or used in or about the Premises by Tenant or any transferee or any of their agents, employees, contractors or invitees. Tenant shall indemnify, defend and hold Landlord harmless from any and all claims, judgments, damages, penalties, liabilities or losses (including without limitation diminution in value of the Premises and Center, damages for the loss of use of rentable space and adverse impact on leasing, and attorneys and other professional fees) (collectively Environmental Damages) which arise as a result of Tenants breach of the foregoing obligations. This indemnification shall also apply to (i) any Environmental Damages accruing or arising, after the Term of this Lease ends, as a result of Tenants breach of its obligations under this provision during the Term, and (ii) any and all clean-up, remedial, removal or restoration work required by any applicable governmental authority if the presence of any Hazardous Matter on the Premises results in any contamination of the Premises, the Center and/or Common Areas. For the purposes of this provision, the term Hazardous Matter shall include without limitation hazardous substances, hazardous materials, hazardous waste, toxic substances, toxic waste and solid waste as those terms are generally defined under federal or state environmental laws.
C. CONTINUOUS OPERATION BY TENANT. Tenant agrees that a Center is an interdependent enterprise that the Centers success is dependent on the continued operation of Tenants business, and that maintenance of the character and quality of the Center is enhanced by the continued occupancy of the Premises and the regular conduct of Tenants business therein. Accordingly, Tenant, subject to regulatory approval, agrees to open the Premises for business on the Commencement Date and operate one hundred per cent (100%) of the Premises during the entire Term. A vacation of premises or cessation of operations by any other tenant(s) in the Center shall not in any way release Tenant from Tenants obligations under this Lease, such obligations being independent covenants of this Lease.
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D. RULES AND REGULATIONS. Tenant agrees to comply with and observe the rules and regulations attached hereto as Exhibit C and incorporated herein. Tenants failure to keep and observe said rules and regulations shall constitute a default in the terms of this Lease in the same manner as if the same were contained herein as covenants. Landlord reserves the right from time to time to amend or supplement said rules and regulations and to adopt and promulgate additional rules and regulations applicable to the Premises, the Center and the Common Areas. Notice of such rules and regulations and amendments and supplements, if any, shall be given to Tenant, and Tenant agrees thereupon to comply with and observe all such rules and regulations, and amendments thereto and supplements thereof.
E. RETAIL RESTRICTION LIMIT. Tenant covenants and agrees that during the Term and any extensions or renewals thereof Tenant will not, directly or indirectly, engage in any business similar to or in competition with that for which the Premises are let within a radius of three (3) miles of the Center, without Landlords prior written consent. The covenant of the preceding sentence shall be inapplicable to any business of Tenant existing as of the date hereof, provided the nature and character of such business remains the same and is continuously operated at the same location.
F. CONDITION OF PREMISES. Tenant accepts the Premises in the as-is condition and agrees that Landlord is not required to do any work or make any improvements in connection with this Lease.
ARTICLE 6 | UTILITIES |
From and after the date on which Landlord delivers the Premises to Tenant (Possession Date), Tenant shall pay for all water, gas, heat, light, electric power, and sewer and stormwater charges, telephone service and all other services and utilities supplied to the Premises, together with any taxes thereon. If not separately metered. Tenants water consumption, if determined by Landlord to be a heavy water user, will be measured by means of a sub-meter installed by Tenant at Tenants expense. This meter will be read monthly and Tenant will be billed at the same rate the Landlord is billed by the supplying municipality. If not a heavy water user, Tenant shall pay twenty-five dollars ($25.00) per restroom each month for water usage.
ARTICLE 7 | PARKING AND OTHER COMMON AREAS |
A. COMMON AREAS. The Common Areas includes the parking lots, sidewalks, driveways, lawns, gardens, and landscaped areas, service areas, corridors, and other areas used in common by the tenants of the Center. The Common Areas also includes all other areas within the exterior boundaries of the Center which are not now or hereafter held for lease by Landlord, all access and perimeter roads, ail arcades, stairways, ramps, interior corridors, elevators, stairs, underground storm and sanitary sewers, utility lines, but excluding all portions of the Center which are used or intended for use by one tenant under the terms of the lease to such tenant. Landlord shall have the right, at any time and from time to time, to change the size, location, elevation or nature of the Common Areas, or any part thereof, including, without [imitation, the right to locate thereon structures and buildings of any type. All Common Areas shall be subject to the exclusive control and management of Landlord, and Landlord shall have the right, at any time and from time to time, to establish, modify, amend and enforce reasonable rules and regulations with resect to the Common Areas and the use thereof. Tenant agrees to abide by and conform to such rules and regulations upon notice thereof; and to cause its concessionaires, invitees and licensees, and its and their employees and agents, so to abide and conform. Landlord shall have the right (i) to close, if necessary, all or any portion of the Common Areas to such extent as may, in the opinion of Landlords counsel, be reasonably necessary to prevent a dedication thereof or the accrual of any rights to any person or to the public therein, (ii) to close temporarily all or any portion of the Common Areas to discourage non-customer use, (iii) to use portions of the Common Areas while engaged in making additional improvements or repairs or alterations to the Center and (iv) to do and perform such other acts (whether similar or dissimilar to the foregoing) in, to and with respect to the Common Areas, as in the use of good business judgment, Landlord shall determine to be appropriate for the Center.
B. MAINTENANCE. Landlord shall keep the Common Areas in a neat, clean and orderly condition and shall repair any damage to the facilities thereof.
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C. COMMON RIGHTS. Tenant shall have the non-exclusive right in common with Landlord, other present and future owners, other tenants, and their respective agents, employees, customers, licensees and subtenants, to use the Common Areas during the entire Term of this Lease, or any extension thereof, provided, however, that Landlord shall maintain full control and authority over the Common Areas at all times.
ARTICLE 8 | REPAIRS |
A. TENANTS REPAIRS. Landlord warrants that all mechanical, electrical and plumbing systems serving the Premises will be in good working condition on the Commencement Date. Landlord makes no warranty as to the condition of the banking equipment and fixtures within the Premises. Tenant shall, through the Term of this Lease, at Tenants expense, maintain the Premises in good order and repair, excluding only such repairs as Landlord is specifically obligated to make under this Article, Paragraph C. Tenant shall not suffer or commit waste, Tenants obligation to repair shall include the obligation to maintain, service and replace. Without limiting the generality of the foregoing, Tenant agrees that the obligation of Tenant to repair, maintain, service and replace shall extend to all electrical, air conditioning, heating and sprinkler systems, plumbing and plumbing fixtures and sewerage pipes serving the Premises. Tenant shall be responsible for damage, from whatever causes, to all glass or plate glass in the Premises, for all damages to water pipes in the Premises caused by freezing or neglect by Tenant, and for damages to the property of other tenants or Landlord caused by the overflow or breakage of any such pipes in the Premises. Tenant hereby indemnifies Landlord and agrees to hold Landlord harmless from and against any and all costs, expenses, liens or charges against the Premises arising out of or related to any obligation of Tenant hereunder. Tenant shall, upon the expiration or sooner termination of the Term of this Lease, surrender the Premises to the Landlord in good condition, broom clean, ordinary wear and tear excepted. Any damage to the Building or adjacent premises caused by Tenants use of the Premises shall be repaired at the sole cost and expense of Tenant. Landlord may, but shall not be obligated to, make any repairs to be made by Tenant hereunder, if not promptly made by Tenant, and all such payments made by Landlord shall be payable by Tenant to Landlord upon demand.
B. HVAC MAINTENANCE CONTRACT. At all times during the term of this Lease, Tenant shall keep in effect a service contract for the HVAC system serving the Premises. Such contract shall cover preventative maintenance items and filter replacement and shall have terms and be with a contractor satisfactory to Landlord. A copy of any such contract shall be delivered to Landlord. If Tenant fails at all times to maintain such HVAC service contract and provide Landlord with a copy thereof, Landlord, at its option, may obtain a service contract for the balance of the lease term and Tenant, upon demand, shall reimburse Landlord for the cost thereof plus a 25% administrative charge.
C. LANDLORDS REPAIRS. Landlord shall keep the structural portions, including the roof, foundations and exterior walls (exclusive of all glass and exclusive of all exterior doors of the Premises) and the underground utility and sewer pipes outside the exterior walls of the Building in which the Premises are located in good repair, except that repairs rendered necessary by the negligence of Tenant, Tenants agents, employees and invitees are the responsibility of Tenant. Landlord, however, makes no warranty or representation concerning the condition of the Premises on the date of this Lease, or subsequent to the delivery of the Premises by the Landlord to Tenant, and shall be under no obligation to inspect the Premises. Tenant shall promptly report in writing to Landlord any defective condition known to Tenant which Landlord is required to repair, and failure to report such condition shall make Tenant responsible to Landlord for any liability incurred by Landlord by reason of such condition.
ARTICLE 9 | ALTERATIONS AND ADDITIONS |
Tenant shall not make or allow any alterations, additions, or improvements to or of the Premises or any part thereof without first obtaining the written consent of Landlord, which consent shall not be unreasonably withheld.
ARTICLE 10 | INSURANCE AND INDEMNITY |
A. INSURING PARTY. Insuring Party shall mean the party who has the obligation to obtain the insurance required hereunder. Tenant shall pay the cost of all insurance required of Tenant as Insuring Party hereunder.
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B. LIABILITY INSURANCE. Tenant shall, at Tenants expense, keep in force during the Term of this Lease, a policy of combined single limit, bodily injury and property damage insurance insuring Landlord and Tenant against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be a combined single limit policy in an amount not less than Two Million Dollars ($2,000,000). The policy shall contain contractual liability endorsements and shall insure performance by Tenant of the indemnity provisions of this Article 10 and shall otherwise be reasonably satisfactory to Landlord. If Tenant shall fail to procure and maintain said insurance, Landlord may, but shall not be required to, procure and maintain the same, but at the expense of Tenant. If, in the reasonable opinion of Landlord, the amount of liability insurance required hereunder is not adequate, Tenant shall increase said insurance coverage as required by Landlord. Tenant shall name Landlord and any designee of Landlord as additional insured parties on all policies of insurance required hereunder.
C. PLATE GLASS INSURANCE. Tenant shall also maintain plate glass coverage for the Premises.
D. PROPERTY INSURANCE.
(1) Landlord shall keep in force during the Term of this Lease, a policy or policies of insurance covering loss or damage to the Building in amounts reasonably determined by Landlord.
(2) Upon demand, Tenant shall pay for any increase in the property insurance of the Building or any other improvements in the Center, if said increase is caused by Tenants acts, omissions, use or occupancy of the Premises. A statement by Landlords insurance agent shall establish such cause.
(3) Landlord will not insure Tenants fixtures, equipment, inventory, Tenant improvements, or other personal property.
E. INSURANCE POLICY. Insurance policies required hereunder shall be issued by companies satisfactory to Landlord. Upon request, the insuring Party shall deliver to the other party copies of policies of all such insurance policies or certificates evidencing the existence and amounts of such insurance. No such policy obtained by Tenant shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days prior written notice to Landlord. If Tenant is the Insuring Party, Tenant shall, within ten (10) days prior to the expiration of any such policies, furnish Landlord with renewals thereof, or Landlord may order such insurance and charge the cost thereto to Tenant, which amount shall be payable by Tenant upon demand.
F. WAIVER OF SUBROGATION. Tenant and Landlord each hereby waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or its property or the property of others under its control to the extent that such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. The Insuring Party shall, upon obtaining the policies of insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in this Lease. Notwithstanding the foregoing, the waiver of subrogation herein contained shall not be effective if its inclusion would cancel an insurance policy of any party required under this Article 10.
G. INDEMNITY. Tenant shall indemnify and hold harmless Landlord from and against any and all claims arising from Tenants use of the Premises, from the conduct of Tenants business, or from any activity, work or thing done, permitted, or suffered by Tenant in or about the Premises or Center. Tenant shall further indemnify and hold harmless Landlord from and against any and all claims arising from any breach or default in the performance of any obligation of Tenant under the terms of this Lease, or arising from any negligence of the Tenant, or from any other such claim or any related action or proceeding brought against Landlord. In case any such action or proceeding is brought against Landlord, Tenant, upon notice from Landlord, shall defend the same at Tenants expense by counsel satisfactory to Landlord. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property or injury to persons, in, upon or about the Premises arising from any cause, except for the gross negligence or willful wrongdoing of Landlord, or insured claims to the extent insurance proceeds are available, and Tenant hereby waives all other claims in respect thereof against Landlord to the maximum extent allowed by law.
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H. EXEMPTION OF LANDLORD FROM LIABILITY. Except to the extent of insurance proceeds actually paid, and except for gross negligence by Landlord, Tenant hereby agrees that Landlord shall not be liable for injury to Tenants business, for any loss of income therefrom, or for damage to the improvements, trade fixtures, contents, goods, wares, merchandise or other property of Tenant (Tenants Contents) or for injury to Tenant, Tenants employees, agents, contractors, invitees, customers, or any other person in or about the Premises, regardless of the cause of such injury or damage, unless Landlord is found grossly negligent. Landlord shall have no liability with respect to any such loss, damage or injury, whether such loss, damage or injury is caused by or results from fire, steam, electricity, gas, water or rain; from the breakage, leakage, obstruction, failure, insufficiency, or other defects of any heating, ventilation, air conditioning, utilities furnished, pipes, sprinklers, wires, appliances, plumbing, or lighting fixtures, or from any other cause, and whether the said loss, damage, or injury results from conditions arising at the Premises or at other portions of the Building, or from other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same are inaccessible to Tenant. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant of the Building.
I. OTHER INSURANCE. Tenant shall maintain ail other insurance which Tenant is required to maintain by law.
J. FORCE MAJEURE. Tenant and Landlord shall not be required to perform any covenant or obligation in this Lease, or be liable for damages to each other, so long as the performance or nonperformance of the covenant or obligation is delayed, caused by, or prevented by an act of nature or force majeure, and any other causes not reasonably within the control of either party.
ARTICLE 11 | DESTRUCTION OF, OR DAMAGE TO, PREMISES |
If the Premises are totally destroyed by storm, fire, lightning, earthquake or other casualty, this Lease shall at the option of Landlord terminate as of the date of such destruction, and all rent shall be accounted for as between Landlord and Tenant through such date. If the Premises are damaged but not wholly destroyed by any of such casualties, and the damages shall not have been due to the negligence, act, or omission to act of Tenant, or its agents, employees, invitees, contractors, subcontractors, subtenants, licensees, or concessionaires rent shall abate in such proportion as use of the Premises has been destroyed, and Landlord shall restore the Premises to substantially the same condition as before damage as speedily as practicable following receipt of insurance proceeds, whereupon full rent shall recommence; provided, however, that in the event of such partial destruction, Landlord shall have the option (in lieu of any restoration obligation) to terminate this Lease, by notice to Tenant given within sixty (60) calendar days following such damage, if either such damage occurs during the last half of the term of this Lease or the cost of such restoration exceeds the proceeds of casualty insurance for the damage to the Premises; or any mortgagee of Landlord requires that the insurance proceeds payable as a result of any such casualty be applied to the payment of the mortgage debt. If the Premises or any portion of the Center be damaged by fire or other casualty resulting from the fault or negligence of Tenant or any of Tenants agents, employees, or invitees, then notwithstanding anything contained in this paragraph, the fixed Minimum Rent hereunder shall not be diminished or abated during the repair of such damage, and Tenant shall be liable to Landlord for the cost of the repair and restoration of the Premises or Center caused thereby to the extent such cost and expense are not covered by insurance proceeds. Any such termination shall be effective as of the date specified in such notice, which date shall be no more than thirty (30) days after giving such notice, and all rent shall be accounted for as between Landlord and Tenant as of the date of the termination of this Lease by Landlord. Tenant shall place personal property and install fixtures in the Premises at Tenants sole risk and expense. No insurance carried by Landlord will provide coverage of any kind for such personal property and fixtures.
If the Center shall be damaged by storm, fire, lightning, earthquake or other casualty, and such damage reduces by more than twenty-five percent (25%) the gross rentable floor area of the Center or if any mortgagee of Landlord requires that the insurance proceeds payable as a result of any such casualty to the Center be applied to the payment of the mortgage debt, Landlord shall have the option to terminate this Lease regardless of whether or not such casualty damages the Premises and whether or not the restoration of such damage would be compensated by insurance. Landlord shall notify Tenant in writing within sixty (60) days after the occurrence of any such casualty if Landlord intends to so terminate this
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Lease. Any such termination shall be effective as of the date of such casualty; provided, however, Tenants obligation to pay rent hereunder shall continue so long as Tenant is in possession of the Premises and the Premises is usable for the purposes for which it was leased. In the event such cancelation, damage or destruction does not give rise to insurance or award by the Tenant, then the Landlords rights herein to cancel would be subject to repayment by the Landlord of Tenants unamortized leasehold improvements.
ARTICLE 12 | EMINENT DOMAIN |
If more than twenty-five percent (25%) of the Premises shall be appropriated by or conveyed to any public authority under the power of eminent domain, either party hereto shall have the right, at its option, within sixty (60) days after said taking, to terminate this Lease upon written notice. If less than twenty-five percent (25%) of the Premises is taken or conveyed, or if more than twenty-five percent (25%) is taken and neither party elects to terminate as herein provided, the Minimum Rent thereafter to be paid shall be equitably reduced; Landlord shall, as diligently as practicable following receipt of the condemnation award, restore the Premises as nearly as is reasonably possible to the condition existing prior to the taking, and Tenant, at Tenants expense, shall make repairs and restorations to the Premises remaining to place the same in the condition as received and shall also repair or replace its stock in trade, personal property, equipment and fixtures, and, if Tenant has closed, shall promptly reopen for business.
If any part of the Center other than the Premises shall be so taken, appropriated, or conveyed, Landlord shall within sixty (60) days of the taking, or conveyance, whichever occurs later, have the right at its option, to terminate this Lease upon written notice to Tenant. Any such termination shall be effective as of the date specified in the notice, and all rent shall be accounted for as of the date of termination.
In the event of any taking, appropriation or conveyance, whatsoever, Landlord shall be entitled to any and all awards and/or settlements which may be given, and Tenant shall have no claim against Landlord or the condemning authority for the value of any unexpired term of this Lease. In the event such appropriation by eminent domain does not give rise to award by the Tenant, then the Landlords rights herein to cancel would be subject to repayment by the Landlord of Tenants unamortized leasehold improvements.
ARTICLE 13 | DEFAULT AND REMEDIES |
A. EVENTS OF DEFAULT. Any one (1) of the following shall be an Event of Default by Tenant: (1) if Tenant fails to pay rent or other money due hereunder within five (5) days after payment is due; or (2) if Tenant fails to pay rent or other money due hereunder on or before the due date two (2) or more times in any period of twelve (12) consecutive months; or (3) if Tenant fails to cure any other default or breach under the terms of this Lease within thirty (30) days after notice is sent by Landlord; or (4) if any person shall levy upon, attach or take Tenants leasehold interest or any other property of Tenant upon execution, foreclosure, attachment or other process of law; or (5) if Tenant makes an assignment of Tenants property for the benefit of any creditors; or (6) if Tenant becomes insolvent; or (7) if any bankruptcy, insolvency or reorganization proceedings or arrangements with creditors is commenced by or against Tenant; or (8) if a receiver or trustee is appointed for any of Tenants property; or (9) if Tenant fails to move into, take possession of and open the Premises for business as required hereunder; or (10) if this Lease is transferred, or the Premises are occupied by anyone other than Tenant, except as may be specifically permitted by this Lease; or (11) if Tenant ceases doing business at the Premises for a period of five (5) consecutive days or abandons the Premises.
B. REMEDIES
Upon the occurrence of any of said Events of Default mentioned in Paragraph A above, Landlord shall have the option, without further demand or notice, at once or any time thereafter during continuance of such default, to do one or more of the following:
(1) Landlord may terminate this Lease by written notice to Tenant. If the Lease is so terminated, Tenant shall be obligated to and shall pay Landlord the Minimum Rent, Adjustments, and additional rent and all other charges which would have been payable by Tenant from the date of termination to the date when this Lease would have expired if it had not so terminated, less the fair rental value of the Premises for the same period, both discounted to present value at the discount rate of the Federal Reserve Bank of
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Atlanta, Georgia, in effect at the time of termination, plus all costs and expenses incurred by Landlord by reason of Tenants default, including reasonable attorneys fees. The Adjustments and additional rent after termination shall be an estimate computed by Landlord, taking into consideration the current estimates of such amounts and the average yearly percentage increase of such amounts over the completed portion of the Lease term. The fair rental value of the Premises shall be based upon the then prevailing rent obtainable for the Premises or for comparable space in the Center. The Tenant agrees to accept the estimates prepared by Landlord for the purpose of computing the amounts owed Landlord following termination of the Lease. No termination of this lease prior to the scheduled expiration thereof shall affect Landlords right to collect Minimum Rent, Adjustments, and/or additional rent or Landlords costs and expenses incurred by reason of Tenants default, including reasonable attorneys fees, for the period prior to the termination thereof.
(2) Landlord, as Tenants agent, without terminating this Lease, may enter upon, retake and relet the Premises at the best price obtainable by commercially reasonable effort, without advertisement and by private negotiations, for any term Landlord deems appropriate which is commercially reasonable. Tenant shall be liable to Landlord for the deficiency, if any, between all of Tenants rent due hereunder and the rent received by Landlord as a result of such reletting (after first deducting from the rents received from such reletting the costs incurred by Landlord in connection with such entry, retaking, or reletting).
(3) In addition to all other remedies available to Landlord under this Lease, Landlord may, at Landlords option, upon default by Tenant, pay any sum of money on behalf of Tenant which Tenant has failed to pay in accordance with the terms hereof, or perform on behalf of Tenant any covenant or obligation of Tenant which Tenant has failed duly to keep, observe and perform, and all sums so paid by Landlord and all costs incurred by Landlord in connection with such performance shall become additional rent payable hereunder, and shall be repaid by Tenant to Landlord upon demand, together with interest thereon. Landlord shall be authorized to use and apply the security deposit of Tenant in the event of default as provided in Article 4, Paragraph D hereof.
C. ADDITIONAL REMEDIES. In the event of an uncured Event of Default or a threatened Event of Default by Tenant, Landlord shall have the right of injunction and the right to invoke any remedy allowed at law or in equity as if re-entry, summary proceedings, and other remedies were not herein provided. The seeking of any particular remedy shall not preclude Landlord from any other remedy in law or in equity.
ARTICLE 14 | DEFAULT BY LANDLORD |
Landlord shall not be in default unless Landlord fails to perform a material obligation hereunder within a reasonable time, after written notice of default by Tenant to Landlord.
ARTICLE 15 | LIENS |
Tenant shall keep the Premises, the Building, and the Center free from all liens arising out of any work performed, services rendered, material furnished or obligations incurred by or on behalf of Tenant, and shall perform no work as Landlords agent.
ARTICLE 16 | ASSIGNMENT AND SUBLETTING |
Tenant shall not directly or indirectly, voluntarily or involuntarily, or by operation of the law, assign, transfer, sell, mortgage, sublet or otherwise transfer or encumber all or any part of Tenants interest in this Lease or in the Premises, or any portion thereof, without Landlords prior written consent which shall not be unreasonably withheld. Landlords consent to any assignment or sublease shall not constitute a waiver of the rights of Landlord under this Article 16, and all later assignments or subleases shall be made likewise only with the prior written consent of Landlord. Any assignee of Tenant, at option of Landlord, shall become directly liable to Landlord for all obligations of Tenant hereunder, but no sublease or assignment by Tenant shall relieve Tenant of any liability hereunder.
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ARTICLE 17 | PERSONAL PROPERTY TAXES |
Tenant shall pay, or cause to be paid, before delinquency, any and all taxes and assessments levied or assessed which become payable during the Term hereof, based upon Tenants use of the Premises, or upon Tenants leasehold improvements, equipment, furniture, fixtures, and other personal property located in the Premises or for services rendered to Tenant by any governmental authority.
ARTICLE 18 | HOLDING OVER |
If Tenant remains in possession of the Premises after the expiration or termination of the Term of this Lease, Tenant will be deemed to be occupying the Premises as a tenant-at-will, terminable day to day, subject to all the covenants and obligations of this Lease and at a minimum daily rental of twice the per diem Minimum Rent for the last month of the Term. If any property not belonging to Landlord remains at the Premises after the expiration of the Term of this Lease, Tenant hereby authorizes Landlord to make such reasonable disposition of such property as Landlord may desire without liability for compensation or damages to Tenant.
ARTICLE 19 | ENTRY BY LANDLORD |
Tenant shall permit Landlord to enter the Premises with Tenant present during reasonable hours, to inspect the same, to submit said Premises to prospective purchasers, lenders, or tenants, to post notices of non-responsibility, and to repair the Premises and any portion of the Building, all as Landlord may deem necessary or desirable, without abatement of rent. Tenant hereby waives any claim for damages or for any injury or inconvenience to, or interference with Tenants business, for any loss of occupancy or quiet enjoyment of the Premises, and for any other loss occasioned thereby unless Landlord is negligent. Landlord may card the Premises For Rent ninety (90) days before the termination of this Lease. Nothing herein contained, however, shall be deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the Premises or Center or any part hereof, except as otherwise specifically provided.
ARTICLE 20 | SIGNS |
Tenant may affix and maintain upon the Premises only those signs which meet the attached Sign Criteria (Exhibit D). Tenant agrees to install within fifteen (15) calendar days of opening for business a Primary sign, Undercanopy sign, in accordance with the Sign Criteria. Tenant shall have the right to use the existing pylon sign adjacent to the Premises.
ARTICLE 21 | LANDLORDS LIABILITY |
Tenant specifically agrees to look solely to Landlords equity or leasehold interest in the Center for recovery of any liability from Landlord. In no event shall Landlord ever be liable to Tenant for any indirect or consequential damages by reason of Landlords breach of the terms of this Lease.
ARTICLE 22 | FINANCIAL STATEMENTS This Section intentionally deleted. |
ARTICLE 23 | MISCELLANEOUS |
A. PLATS AND RIDERS. Clauses, exhibits, plats, riders and addenda, if any, affixed to this Lease are a part hereof and incorporated herein by this reference.
B. WAIVER. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition with respect to any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding default by Tenant of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlords knowledge of such preceding default at the time of the acceptance of such rent.
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B. JOINT OBLIGATION. If there is more than one (1) Tenant under this Lease, the obligations hereunder imposed shall be joint and several.
D. MARGINAL HEADINGS. The marginal headings and titles to the Articles and Paragraphs of this Lease are not a part of the Lease and shall have no effect upon the construction or interpretation of any part hereof.
E. TIME. Time is of the essence of this Lease and of the performance of each and all of its provisions in which performance is a factor.
F. BINDING EFFECT. The covenants and conditions herein contained, subject to the provision as to assignment and subletting, shall apply to and bind the heirs, successors, executors, administrators, sublessees, licensees, concessionaires, and assigns of the parties hereto.
G. RECORDATION. Neither Landlord nor Tenant shall record this Lease, but a short form memorandum hereof may be recorded at the request and expense of the party requesting the same. At such time as this Lease terminates or expires for any reason, Tenant agrees to execute such instruments as necessary to release any short form lease of record.
H. QUIET POSSESSION. Upon Tenants paying the rent reserved hereunder and observing and performing all of the covenants, conditions and provisions on Tenants part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the Term, subject to all the provisions of this Lease.
I. BROKERS COMMISSION. Each of the parties represents and warrants to the other that there are no claims for brokerage commissions or finders fees in connection with the execution of this Lease, except as listed below, and each of the parties agrees to indemnify the other against, and hold it harmless from, all liabilities arising from any such claim (including, without limitation, the cost of attorneys fees in connection therewith): Edwin B. Raskin Co., representing Landlord and Alliant Commercial Realty Services, LLC and Brentview Realty, representing Tenant.
J. PRIOR AGREEMENT. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or altered except by an agreement in writing signed by the parties hereto or their respective successors in interest.
K. PARTIAL INVALIDITY. Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect or impair any other provision hereof, and all other provisions shall remain in full force and effect.
L. CUMULATIVE REMEDIES. No remedy or election of Landlord hereunder shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
M. CHOICE OF LAW. This Lease shall be governed by the laws of the State of Tennessee.
N. ATTORNEYS FEES. Should it be necessary for Landlord or Tenant to employ legal counsel to enforce any of the provisions herein contained, Landlord and Tenant agree the substantially non-prevailing party shall pay all attorneys fees and collection costs reasonably incurred by the other party including costs of appeal, court costs, and court reporters fees.
O. SALE OF PREMISES BY LANDLORD. In the event of any sale of the Premises by Landlord, Landlord shall be and is hereby entirely freed and relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease arising out of any act, occurrence or omission occurring after the consummation of such sale. Any such sale shall be subject to this Lease.
P. SUBORDINATION AND ATTORNMENT. Tenant agrees to subordinate its rights hereunder to the lien of any mortgage, deed of trust, or other security instrument, in favor of any lender, now or hereafter in force against the Premises, and to ail advances made or hereafter to be made upon the security thereof.
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In the event any proceedings are brought for foreclosure, or in the event of the exercise of the power of sale under any mortgage, deed of trust, or other security instrument covering the Premises, Tenant shall attorn to the purchaser upon any such foreclosure or sale, and recognize such purchaser as the Landlord under this Lease.
Q. NOTICES. All notices and demands given under this Lease shall be in writing, and shall be sent by certified mail, return receipt requested, postage prepaid, or delivered in person to the Landlord at the address it receives rent and to the Tenant at the Premises with a copy to 722 Columbia Avenue, Franklin, TN 37067, Attention: Lisa Musgrove
All such notices shall be deemed given when deposited with the United States Postal Service as hereinabove provided, or delivered, in the case of a delivered notice. Either party may change the designated address by written notice to the other party.
R. TENANTS STATEMENT. Tenant shall at any time and from time to time, upon not less than five (5) days prior written notice from Landlord, execute, acknowledge and deliver to Landlord such written estoppel certificates as may be reasonably and customarily required by Landlord or any prospective purchaser, lender, or venturer of all or any portion of the Center.
S. AUTHORITY OF TENANT. If Tenant is other than an individual, each individual executing this Lease represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of Tenant, and that this Lease is binding upon Tenant.
T. NUMBER AND GENDER. Whenever the context of this Lease so requires, the use of the plural shall include the singular, the masculine, the feminine, and vice versa.
U. LANDLORDS LIEN. THIS SECTION INTENTIONALLY DELETED.
V. REMOVAL OF FIXTURES AND PROPERTY. Tenant may (if not in default hereunder) prior to the expiration of this Lease, remove all personal property, trade fixtures and equipment which Tenant has placed in the Premises (but not any such items in the Premises at the Commencement Date) provided Tenant simultaneously repairs all damage to the Premises caused by such removal. Notwithstanding the foregoing, Tenant shall not be permitted to remove any other alterations, additions or improvements to the Premises, including but not limited to wall coverings, floor coverings, fixtures, (other than trade fixtures), which shall be deemed a part of the Premises and surrendered to Landlord upon the expiration of this Lease.
W. SURRENDER OF PREMISES/TENANTS PROPERTY. Upon the expiration or earlier termination of this Lease or the reentry by Landlord of the Premises following default by Tenant, Tenant shall at once surrender possession of the Premises to Landlord in the same condition as the Premises were at the date Tenant opened the Premises to the public, reasonable wear and tear excepted, shall surrender all keys for the Premises to Landlord, and shall remove all of Tenants effects therefrom subject to and as provided in Paragraph V above. Should any property of Tenant remain in or about the Premises following such expiration or termination (or upon reentry by Landlord following default by Tenant), then such property shall be conclusively deemed to have been abandoned by Tenant, and Landlord shall have the right, at the expense of Tenant, to dispose of said property without liability for damages or otherwise. Any proceeds from such disposition may be applied by Landlord to the expense of removal, storage or sale and to any amounts due under this Lease.
X. TAX ON RENTS. If any governmental authority imposes any sales and use tax, or similar tax, upon the rents and other charges required hereunder, other than regular income taxes owed by Landlord, Tenant shall be responsible for paying said additional taxes in a timely manner.
Y. PAYMENTS PRIOR TO BANKRUPTCY. If any bankruptcy or reorganization proceedings are commenced by or against Tenant, all payments made under this Lease shall be applied to the most recent obligations of Tenant hereunder, rather than to the oldest obligations of Tenant hereunder, regardless of any contrary intention of Tenant.
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Z. WAIVER OF RIGHT OF REDEMPTION. Tenant hereby expressly waives any and all rights of redemption conferred by statute or otherwise which Tenant has or may have in the future.
AA. WAIVER OF JURY TRIAL. Landlord and Tenant hereby mutually waive any and all rights which either party may have to request a jury trial in any proceeding at law or in equity in any court of competent jurisdiction arising in connection with this Lease.
BB. RELATIONSHIP OF THE PARTIES. Nothing contained in this Lease shall be deemed or construed as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto, it being understood and agreed that neither the method of computing rent or any other provision contained herein nor any acts of the parties hereto shall be deemed to create any relationship between the parties other than that of Landlord and Tenant.
ARTICLE 24 | RENEWAL OPTION. |
Tenant shall have the right to be exercised as hereinafter provided, to extend the term of this Lease for one period of three (3) years, from the date of expiration of the original term hereof upon the following terms and conditions.
1. | That at the time of the exercise of such right and at the beginning of the renewal term Tenant shall not be in default in the performance of any of the terms, covenants, conditions or agreements herein contained; |
2. | That such extension shall be upon the same terms, covenants, conditions and agreements as in this Lease provided. |
3. | That Tenant shall exercise its right to the extension of the term of this Lease by notifying Landlord of Tenants election to exercise such right at least one hundred twenty (120) days prior to the expiration of the original term of this Lease. Upon the giving of such notice, this Lease shall be deemed extended for the specified period, subject to the provisions of this paragraph, and execution of an amendment to this Lease setting forth the Minimum Rent for the renewal term. |
4. | The Minimum Rent for the renewal term shall be the then current market rent, for the Premises, as reasonably established by Landlord. |
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed as of the date first above written.
TENANT: | FRANKLIN SYNERGY BANK | |||||||
BY: |
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TITLE: |
EVP & CFO |
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LANDLORD: | SIG, LLC | |||||||
BY: | EDWIN B. RASKIN COMPANY AGENT | |||||||
BY: |
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DAVID L. BATTIS, PRESIDENT |
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EXHIBIT B
LEGAL DESCRIPTION OF SHOPPING CENTER
Merchants Walk Shopping Center
PROPERTY DESCRIPTION
A tract of land in the First Civil District of Metropolitan Nashville, Davidson County, Tennessee and in the Fifteenth Civil District of Williamson County, City of Brentwood, Tennessee and being designated as Tract Two, (Reserved Parcel) as shown on the plan entitled Resubdivision of Tract Two, Maryland Farms East Park as of record in plat book 5200, page 660, R.O.D.C., Tennessee and plat book 20, page 3, R.O.W.C. Tennessee and being more particularly described as follows:
Beginning at an iron pin set on the south right-of-way of Old Hickory Boulevard, (a 120 foot road), said pin being situated 267.05 feet east of the north end of the northeast return curve at the intersection of Old Hickory Boulevard and East Park Drive, (a 60 foot road), said pin also being the northeast corner of Lot 6 as shown on the plan entitled Resubdivision of Tract Two, Maryland Farms East Park, as of record in plat book 5200, page 660, R.O.D.C., Tennessee and also being the northwest corner of the herein described tract of land, Thence,
1. | With the south right-of-way line of Old Hickory Boulevard, S 882406E, 179.58 feet to an existing concrete Highway Monument; Thence, |
2. | S 862856 E. 64.97 feet to an existing concrete highway monument; Thence, |
3. | S 045159 W. 5.09 feet to an existing concrete highway monument; Thence, |
4. | S 871622 E. 131.69 feet to an iron pin set; Thence, |
5. | 137.05 feet along the arc of a curve to the left that has a radius of 934.77 feet to an iron pin set, said curve has a chord bearing and distance of N 884934 E. 136.93 feet; Thence, |
6. | 5.69 feet along the arc of a curve to the left that has a radius of 1347.24 feet to an iron pin set, said curve has a chord bearing and distance of N 843018 E. 5.69 feet; Thence, |
7. | N 063817 W. 5.00 feet to a lack set in leaded hole in a concrete retaining wall, Thence, |
8. | With a spiral curve to the left, 257.56 feet to an iron pin set, said curve has a chord bearing and distance of N 811311 E. 257.25 feet; Thence, |
9. | N 791518 E. 31.60 feet to an iron pin set; Thence, |
10. | N 791518 E. 15.45 feet to an iron pin set; Thence, |
11. | Leaving the southerly right-of-way line of Old Hickory Boulevard and with the northwest line of the Glen A. Nobel property as recorded in deed book 100, page 83, R.O.W.C., Tennessee, 259.50 feet along the arc of a curve to the right that has a radius of 650.00 feet to an existing iron pin, said curve has a chord bearing and distance of S 452801 W. 257.78 feet; Thence, |
12. | Continuing with the northwest line of Nobel and the Grace T. Murphy, Et Al property as recorded in deed book 484, page 234 R.O.W.C., Tennessee, S 565414 W. 363-94 feet to an existing iron pin; Thence, |
13. | With the northwest line of the Edwin B. Raskin, Trustee property as recorded in deed book 369 page 437, R.O.W.C., Tennessee, S 582925 W. 72.49 feet to an existing P.K. nail; Thence, |
14. | Leaving the northwest line of Raskin and with the north line of Lot 32 as shown on the plan entitled Section 23, Resubdivision Tract Three, Maryland Farms East Park, as recorded in plat book 9, page 75, R.O.W.C., Tennessee, Lot 32 also being the AID Association for Lutherans property as recorded in deed book 882, page 867, R.O.W.C., Tennessee N W,290.38 feet to an iron pin set; Thence, |
15. | With the east line of the aforementioned Lot 6, said Lot also being the Randolph M. Lagasse, Et Ux property as recorded in deed book 9395, page 162, R.O.D.C., Tennessee N 033118 E. 364.17 feet to the point of beginning and containing 209.305 square feet or 4.805 acres more or less as calculated by the above courses which were determined within the precision requirements of a class Urban ALTA/ACSM Land Title Survey of 1992. This description was prepared by: John O. Spry R.L.S. #727 on December 28, 1994. |
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EXHIBIT C
RULES AND REGULATIONS
Merchants Walk Shopping Center
TENANT AGREES AS FOLLOWS:
1. | Landlord may amend or add new Rules and Regulations for the use and care of the Premises, the Building, and the Center, at any time in the future as Landlord deems is in the best interest of the Center. |
2 | Tenants exterior lighted sign shall be illuminated from sunset to 1:00 a.m. seven (7) days per week irrespective of whether its store is open for business. If Tenant fails to comply with these operating hours, then, in addition to all of its other rights and remedies set forth in the Lease, Landlord shall have the right to charge Tenant an amount not to exceed Twenty Dollars ($20.00) per incident of non-compliance. |
3. | All deliveries or shipments of any kind to and from the Premises, including loading of goods, shall be made only by way of the rear of the Premises or at any other location designated by Landlord, and only at such times designated for such purposes by Landlord. |
4. | Tenant is responsible for placing trash in the dumpster which is provided by Landlord and paid for through Common Area expenses. Tenant shall store soiled or dirty linen only in approved fire rating organization containers. If Tenant fails to comply with this rule, then Landlord shall have the right, in addition to all other rights and remedies in the Lease, to charge Tenant an amount not to exceed Twenty Dollars ($20.00) per incident of non-compliance. |
5. | No radio or television aerial, satellite dish, antenna, or other similar devices, shall be installed or erected on the roof or exterior walls of the Premises or Building without first obtaining in each instance Landlords consent in writing. Any aerial or devise installed without such written consent shall be subject to removal at Tenants expense without notice at any time. Landlord may withdraw any such consent at any time, and in such event Tenant shall remove any such installation within ten (10) days after notice. No loud speakers, televisions, phonographs, radios, tape players or other devises shall be used in a manner so as to be heard or seen outside of the Premises without the prior written consent of Landlord. |
6. | At all times, Tenant shall keep the Premises at a temperature sufficiently high to prevent freezing of water in pipes and fixtures. |
7. | The outside areas immediately adjoining the Premises shall be kept clean and free from snow, ice, dirt and rubbish by Landlord, and Tenant shall not place, suffer or permit any obstructions or merchandise in such areas. |
8. | Tenant shall not use the Common Areas of the Center for business purposes. |
9. | Tenant and its employees shall park their cars only in the designated parking areas Tenant shall furnish to Landlord its and its employees vehicle license numbers within five days after taking possession of the Premises and will notify Landlord of any changes within five (5) days thereof. If Tenant or its employees fail to park their cars in the designated parking areas, then Landlord shall have the right to either have such vehicles towed away from the Center at the expense of the violating party, and/or to attach violation stickers or notices to such cars or charge the violating party an amount not to exceed Twenty Dollars ($20.00) per car parked in any non-designated parking area. |
10. | Plumbing facilities shall not be used for any purposes other than that for which they are constructed, and no foreign substances of any kind shall be placed therein. |
11. | Tenant, at Tenants cost, will take appropriate action to keep premises free of insects/pests. |
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EXHIBIT D
SIGN CRITERIA
Merchants Walk Shopping Center
1. | GENERAL CRITERIA |
The purpose of this manual is to define and specify all criteria for the signage for all shops and offices at Merchants Walk Center. This manual was developed as a guideline for all Tenant signage in order to compliment the overall design concept of the center. These guidelines will insure identification of the signage while producing a coordinated, complimentary graphic image for the entire center.
Each Tenant is required to have only one Primary Sign Unit unless otherwise approved by Landlord, one Undercanopy Sign Unit, and Rear Door/Alcove Lettering.
Except as provided herein, no advertising placards, banners, posters, pennants, flags, names, insignia, trademarks or other descriptive material shall be affixed or maintained upon either the interior or exterior of the glass panels and supports of the show windows and doors, or upon the exterior walls of the buildings.
All sign units, including additional symbols or logos, must be submitted to the Landlord for approval prior to fabrication and installation. The cost of fabrication and installation and maintenance of each sign unit and permits shall be the responsibility of the Tenant. The sign company shall be chosen by the Tenant and approved by the Landlord. Sign construction is to be completed in compliance with the instructions, limitations and criteria contained in this manual. Any installed non-conforming or unapproved sign shall be brought into conformance at the nonconforming Tenants expense.
(1) | The location, character, design, color and layout of all exterior signs shall be designed by Tenant at Tenants expense. Proper consideration, however, shall be given to the style, design and character of signs used by occupants for the same or similar retail operations elsewhere. |
(2) | Tenant agrees to pay all costs for the fabrication and installation of all exterior signage in accordance with Paragraph (1) above. All signs shall be fabricated and installed in compliance with applicable building and electrical codes and bear a U.L. label. The name and/or stamp of the sign contractor or sign company or both shall not be exposed to view. |
(3) | No signs produced on plywood or other similar flat surfaces are allowed. No spotlights attached to the canopy to shine on signs are allowed. |
(4) | No sign will be placed in final position without written approval of Landlord, which approval shall be at the sole discretion of Landlord. |
(5) | Any and all approved signs placed on the Premises by Tenant shall be maintained in compliance with all governmental ordinances, rules and regulations governing such signs, and Tenant shall be responsible to Landlord for any damage caused by installation, use or maintenance of said signs or violation of ordinances, rules or regulations with regard thereto. Upon any removal of said signs, Tenant shall simultaneously repair all damage incidental to such removal. All such signs shall be so removed prior to the expiration or termination of this Lease. |
(6) | The following type signs are prohibited: |
(a) | Paper, cardboard or hanging signs and/or stickers utilized as signs, whether affixed or hung from windows, doors, fascia or canopy, except for government required window stickers; |
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(b) | Signs of a temporary character or purpose, irrespective of the composition of the sign or material use therefore, except signage professionally and tastefully prepared; |
(c) | Portable trailer signs; and |
(d) | Temporary sign; exception being that Tenant will place a Coming Soon type of sign interiorly facing outwardly within one (1) week after lease execution. |
(e) | Signs, pictures or paintings within the Premises if visible from the Common Area unless written permission of Landlord is first obtained. |
2. | SPECIFICATIONS |
A. | SIGN TEXT |
The Primary Sign, Undercanopy Sign, and Rear Door/Alcove Lettering shall not include the product sold except as part of the occupants trade name or insignia. The rear door/alcove signage will have the Tenants name and address. Any additional symbols or logos for the undercanopy sign must be submitted to the Landlord for approval.
B. | TYPOGRAPHY |
The Tenant shall arrange for the design and fabrication of the signs, in conformance with the restrictions noted in this sign criteria manual.
Individual letters will be used on ail signs. The style of the typography shall be Helvetical Medium, except that other styles may be used contingent upon the final approval of the Landlord.
C. | LOCATION AND SIZE |
(1) | Primary Sign Unit - One Only (unless otherwise approved by Landlord) . |
The Primary Sign Unit shall consist of one line of sign text, mounted one inch (1) from the brick background. Sign text shall be all upper case letters with a maximum height of 24 inches. The Primary Sign Unit shall be centered between the Tenants demising walls immediately in front of the Tenants storefront, with the maximum width not to exceed 80% of the lineal leased frontage. Signs shall be permitted on the shops facia only within the areas as defined by the Manual.
(2) | Undercanopy Sign Unit - One Only . |
The undercanopy sign unit shall consist of a 2x2-6x1-6 sandblasted wood sign (with text on both sides), The canopy sign shall be located above the center of the shop entry door.
(3) | Rear Door/Alcove Signage - One Each |
Each Tenant shall have applied to the rear receiving door/alcove (depending on location of shop) the Tenants name and address on a signage system Slatz, manufactured by Spandex USA, (215) 797-8249 or approved equal. Each unit shall be 30 long x 4-7/8 high located as shown on Example 4. Where Tenant uses the same alcove, each Tenants name and address shall be applied to either side of alcove. The lettering shall be on two lines with a maximum 2-1/2 height.
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3. | MATERIALS AND INSTALLATION |
A. | PRIMARY SIGN UNIT |
Signs shall be of individual, internally illuminated, plastic faced letters with a four inch (4) metal return. Letters shall be mounted to the face of a 6 x 8 high raceway (provided by Tenant) which will fit inside the recessed power channel (See Examples 1, 2, and 6). All fasteners shall be concealed and weather tight. Wiring from letters to the waterproof junction box in the power channel shall be concealed. All necessary sign transformers shall be remote located above the Tenants ceiling near the storefront wall. All signage must be designed to meet local sign ordinances.
B. | UNDERCANOPY SIGN UNIT |
Signs shall be a 2 thick, red cedar, sandblasted board with 1 wide raised perimeter border and 1/8 thick perimeter steel band (painted), supported as shown on Examples 2, 3, and 5. Signage will occur on both sides of the board. The signage copy and any pre-approved symbols or logos) will be raised with the background sandblasted 1/2 deep.
C. | REAR DOOR/ALCOVE SIGNAGE |
Signs shall be made of extruded aluminum (clear satin) face plate, Super Slatz with black die cut vinyl letters. The mounting track shall be standard shape. (See Example 4).
4. | GUARANTEE AND GENERAL SPECIFICATIONS |
The project is located in two different counties, one in the city of Nashville and one in the city of Brentwood. The sign contractor is responsible for compliance with the appropriate zoning requirements (and the guides of this manual) depending on the Tenant location.
The entire signage package shall be guaranteed for one (1) year from Date of Installation against defects in material and workmanship. Defective parts shall be replaced without charge.
All electrical signs shall bear the UL label, and their installation must comply with all local building and electrical codes.
All conductors, transformers and other equipment shall be concealed.
All bolts, fastening, clips, etc., shall be painted to match sign mounting surface.
No signmakers label or other identification will be permitted on the exposed surface of sign, except for those required by local ordinance which shall be placed in an inconspicuous location.
Sign contractor shall repair any damage to any work caused by his work. Damage to structure that is not repaired by the sign contractor shall become the Tenants responsibility to correct.
Tenant shall be fully responsible for the operation of Tenants sign contractor and shall indemnify, defend and hold the Landlord harmless from damages or liabilities on account thereof.
All exterior signs exposed to the weather shall be mounted one inch (1) from the building to permit proper dirt and water drainage. Each sign will also have weepholes at the bottom to allow proper drainage.
All signs shall be fabricated using full welded construction.
Sign contractor is responsible for making complete electrical connections from signs to Tenants electric panel through conduit provided by Landlord. A time clock for controlling the signs shall be provided and installed by the Tenant.
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5. | COLOR |
A. | PRIMARY SIGN UNIT |
The color of the plastic letter face of the Primary Sign Unit shall be one of the following:
Plexiglas Blue | #2329 | Acrylite Blue | 61 3-0 | |||
Plexiglas White | #7420 | Acrylite White | 048-2 | |||
Plexiglas Red | #2283 | Acrylite Red | 211-1 |
or other color to be approved by Landlord.
NEON COLOR SHALL MATCH PLASTIC FACE COLOR.
The metal side return of the letter shall be dark bronze. The exposed faces of the raceway shall be painted to match the power channel cover.
Use United Paint: | LH46 Exterior Latex HIP Ploy Glo | |
.C10Y |
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.F4Y8 |
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.L2Y |
B. | UNDERCANOPY SIGN UNIT |
The raised letters and wood trim shall be painted to match the selected color of the Primary Sign Unit. The sign background shall be stained with Olympic Stain-Navajo White, and steel band painted to match Olympic Stain 729. Any other colors for logos and symbols (whose use has been pre-approved by the Landlord) must also be submitted for approval to the Landlord.
C. | REAR DOOR/ALCOVE LETTERING |
The color of the letters will be Black.
6. | APPROVAL |
Each Tenant shall submit shop drawings from approved sign contractor to the Landlord for approval, prior to fabrication and installation. The following submission requirements constitute the minimum data required.
1. | Layout of name for Primary Sign and Undercanopy Sign Unit, and Rear Door/Alcove Signage showing all dimensions and construction materials and details. |
2. | Layout of additional symbols or logos (may be submitted only for the Undercanopy Sign Unit). |
3. | Color(s) chosen from approved list. |
Two (2) copies of signage drawings shall be submitted to the Landlord as follows:
SIG, LLC
c/o Edwin B. Raskin Company, Agent
5210 Maryland Way, Suite 300
Brentwood, Tennessee 37027
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EXHIBIT 10.16
WARRANT AGREEMENT
The following conditions and provisions shall be applicable to the Warrants to purchase Common Stock of Franklin Financial Network, Inc. (the Company) issued on , 2007:
Section 1. Exercise of Warrants.
(a) This Warrant may be exercised by surrendering it, at the corporate office of the Company, with the subscription form set forth herein or on the back of the Warrant Certificate duly executed, and by paying in full the Warrant Price for each share of Common Stock as to which the Warrant is exercised.
(b) As soon as practicable after the exercise of the Warrant, the Company shall issue to or upon the order of the holder of such Warrant a certificate or certificates for the number of shares of Common Stock to which he is entitled, registered in such persons name, and if the Warrant shall not have been exercised in full, a new Warrant for the number of shares as to which the Warrant shall not have been exercised.
(c) All shares of Common Stock issued upon the exercise of a Warrant shall be validly issued upon payment of the Warrant Price for each full share of Common Stock as to which the Warrant is exercised.
(d) Each person in whose name any such certificate for shares of Common Stock is issued shall be deemed for all purposes to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment is the date when the stock transfer books of the Company are closed, such persons shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the stock transfer books are opened.
(e) All shares of Common Stock issued upon the exercise of a Warrant shall bear a restrictive legend substantially as follows:
THIS WARRANT HAS BEEN ISSUED UNDER AN EXEMPTION FROM REGISTRATION UNDER THE FEDERAL SECURITIES ACT OF 1933 AND UNDER THE SECURITIES ACTS OF CERTAIN STATES. THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS WARRANT MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933. FURTHERMORE, NO OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS TO TAKE PLACE WITHOUT THE PRIOR WRITTEN APPROVAL OF COUNSEL OF THE ISSUER, OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933. THIS WARRANT IS NOT A BANK ACCOUNT AND IS NOT FDIC INSURED.
Section 2. Warrant Price. This Warrant shall entitle the bearer to purchase from the Company the number of shares of Common Stock stated herein at the price of $12.00 per share (the Warrant Price).
Section 3. Duration of Warrant .
(a) Expiration . This Warrant may be exercised, subject to the provisions of sub-section (b), below, at any time prior to 5:00 p.m., Franklin, Tennessee, local time, on , 2012, upon compliance with the provisions of Section 1, above, and upon payment of the Warrant Price as set forth in Section 2, above.
(b) Redemption by Company . Anything herein to the contrary notwithstanding, in the event the Common Stock of the Company is to be registered under the Securities Act of 1933 or is traded on a national securities exchange at $15.00 or more for forty-five (45) consecutive days, the Company may redeem the Warrants at any time thereafter with not less than thirty (30) days written notice to the holder of such Warrant, in whole or in part, at a redemption price of $1.00 per Warrant Share; provided, however, that the holder of this Warrant may exercise this Warrant, in whole or in part, during such thirty (30) day period.
(c) Expiration Date . The Expiration Date shall be as indicated above unless redeemed by the Company pursuant to sub-section (b) above, on not less than thirty (30) days notice, in which event the Expiration Date shall be five oclock, p.m., Franklin, Tennessee, local time, on the 30th day following notice thereof (or in the event such day is a Saturday, Sunday, or legal holiday, on the next business day thereafter), or in the event that such notice period is greater than thirty (30) days the Expiration Date shall be that date given in such notice, not to exceed one hundred eighty (180) days. Each Warrant not exercised on or before the Expiration Date shall become void and all rights thereunder and all rights in respective thereof shall cease at the close of business on the Expiration Date, subject only to payment of the redemption price.
Section 4. Adjustments.
(a) Stock Dividends and Split-ups . If after the issuance of this Warrant, and subject to the provisions of sub-section (g), below, the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock, then on the day following the date fixed for the determination of holders of Common Stock entitled to receive such stock dividend or split-up, the number of shares issuable on exercise of this Warrant shall be increased in proportion to such increase in outstanding shares and the then applicable Warrant Price shall be correspondingly decreased.
(b) Aggregation of Shares . If after the issuance of this Warrant, and subject to the provisions of sub-section (g), below, the number of outstanding shares of Common Stock is decreased by a combination or reclassification of shares of Common Stock then, after the combination or reclassification, the number of shares issuable on exercise of such Warrant shall be decreased in proportion to such decrease in outstanding shares and the then applicable Warrant Price shall be correspondingly increased.
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(c) Special Stock Dividends . If after the issuance of this Warrant any class of Capital Stock of the Company (other than Common Stock) is issued by way of a stock dividend on outstanding Common Stock, then, commencing with the day following the date fixed for the determination of holders of Common Stock entitled to receive such stock dividend, in addition to any share of Common Stock receivable upon exercise of the Warrants, the Warrant holders shall, upon such exercise of the Warrants, be entitled to receive, as nearly as practicable, the same number of shares of dividend stock, plus any shares issued upon any subsequent change, replacement, subdivisions, or combination thereof to which the holders would have been entitled had their Warrants been exercised immediately prior to such dividend. No adjustment in the Warrant Price shall be made merely by virtue of the happening of any event specified in this sub-section (c).
(d) Reorganization, etc . If after the issuance of this Warrant there is any capital reorganization, redemption, or reclassification of the Common Stock of the Company, or consolidation or merger of the Company with another corporation, or the sale of all or substantially all of its assets to another corporation shall be effected, then, as a condition of such reorganization, redemption, reclassification, consolidation, merger, or sale, lawful and fair provision shall be made whereby the Warrant holders shall thereafter have the right to purchase and receive upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, such shares of stock, securities, or assets as may be issued or payable with respect to or in exchange for a number of outstanding shares of such Common Stock equal to the number of shares of such stock immediately theretofore purchasable and receivable upon the exercise of the rights represented by the Warrants had such reorganization, reclassification, consolidation, merger, or sale not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of the Warrant holders to the end that the provisions hereof (including, without limitation, provisions for adjustment of the Warrant Price and of the number of shares purchasable upon the exercise of the Warrants) shall thereafter be applicable, as nearly as may be in relation to any share of stock, securities, or assets thereafter deliverable upon the exercise hereof. The Company shall not effect any such consolidation, merger, or sale unless prior to the consummation thereof the successor corporation (if other than the Company) resulting from such consolidation or merger, or the corporation purchasing such assets, shall assume by written instrument executed and delivered to the Company the obligation to deliver to the Warrant holders such shares of stock, securities or assets as, in accordance with the foregoing provisions, such holders may be entitled to purchase.
(e) Notice of Changes in Warrant . Upon any adjustment of the Warrant Price or the number of shares issuable on exercise of a Warrant, then and in each such case the Company shall give written notice thereof to each holder of a Warrant (at the name and address as set forth on the books and records of the Company), which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based.
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(f) Other Notices . In case at any time:
(i) the Company shall pay any dividends payable in stock upon its Common Stock or make any distribution (other than regular cash dividends) to the holders of its Common Stock;
(ii) the Company shall offer for subscription pro rata to the holders of its Common Stock any additional shares of stock of any class by other rights;
(iii) there shall be any capital reorganization, redemption, or reclassification of the capital stock of the Company, or consolidation or merger of the Company with, or sale of all or substantially all of its assets to, another corporation; or
(iv) there shall be a voluntary or involuntary dissolution, liquidation, or winding up of the Company.
then, in any one or more of such cases, the Company shall give written notice in the manner set forth in sub-section (e) of the date on which (A) the books of the Company shall close or a record shall be taken for such dividend, distribution, or subscription rights, or (B) such reorganization, redemption, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding up shall take place, as the case may be. Such notice shall also specify the date as of which the holders of Common Stock of record shall participate in such dividend, distribution, or subscription rights, or shall be entitled to exchange their Common Stock for securities or other property deliverable upon such reorganization, redemption, reclassification, consolidation, merger, sale, dissolution, liquidation, or winding up, as the case may be. Such notice shall be given and published at least 10 days prior to the action in question and not less than 10 days prior to the record date or the date on which the Companys transfer books are closed in respect thereto. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any of the matters set forth in the foregoing sub-sections (i) to (iv), both inclusive.
(g) Limitation on Fractions . Anything in sub-sections (a) or (b), above, to the contrary notwithstanding, upon the issuance of the Warrants cumulative adjustments in the number of shares issuable on exercise of Warrants shall be made only to the nearest multiple of one whole share, i.e., fractional shares shall be disregarded and fractions of one-half of a share, or more, shall be treated as being one full share.
(h) Form of Warrant . The form of Warrant need not be changed because of any change pursuant to this Article, and Warrants issued after such change may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this agreement. However, the Company may at any time in its sole discretion (which shall be conclusive) make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof; and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
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(i) The Company may, without the consent of the holders of the Warrants, make changes in the Warrant that are required to cure any ambiguity or to correct any defective or inconsistent provision or clerical omission or mistake in the Warrant, add to the covenants and agreements that the Company is required to observe, or result in the surrender of any right or power reserved to or conferred upon the Company in the Warrant, but which changes do not or will not adversely affect, alter or change the rights, privileges, or immunities of the holders of Warrants.
Section 5. Provisions Relating to Rights of Holders of Warrants .
(a) This Warrant does not entitle the holder hereof to any of the rights of a shareholder of the Company.
(b) If this Warrant is lost, stolen, mutilated or destroyed, the Company, on such terms as to indemnity or otherwise as it, in its discretion may impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), will issue a new Warrant of like denomination, tenor and date as the Warrant so lost, stolen, mutilated or destroyed.
(c) The Company shall reserve and keep available at all times a number of its authorized but unissued shares of Common Stock that will be sufficient to permit the exercise in full of this and all other outstanding Warrants.
Section 6. Transfer and Exchange of Warrants .
(a) This Warrant has not been registered with the Securities and Exchange Commission or under the securities laws of any state. The Warrant Stock to be issued upon the exercise of the Warrants is not anticipated to be registered under the Securities Act of 1933 or under the laws of any state. The holder of this Warrant, by its acceptance thereof, represents that the Warrant and any Warrant Stock issued pursuant hereto have been acquired for investment and not with a view to or for resale in connection with the distribution hereof. No disposition of the Warrant or any Warrant Stock issued pursuant hereto may be made in the absence of an effective registration statement under the Securities Act of 1933 or an opinion of counsel satisfactory to the Company to the effect that such disposition is in compliance with the Securities Act.
(b) In compliance with sub-section (a), above, one or more Warrants may be surrendered to the Company for exchange and, upon cancellation thereof, the Company shall deliver and exchange therefor one or more new Warrants, as requested by the holder of the cancelled Warrant or Warrants for the same aggregate number of shares as were evidenced by the Warrant or Warrants so cancelled; subject, however, to the provisions that the Company may, as a requirement to said exchange, demand and require that the holder represent that the Warrant or Warrants, and any Warrant Stock to be issued pursuant thereto, have been acquired for investment and not with a view to or for resale in connection with the distribution thereof.
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Section 7. Notice.
(a) Any notice or demand to be given or made by the holder of this Warrant to the Company shall be sufficiently given or made if sent by mail, first-class or registered, postage prepaid, addressed to the Company at its principal office as set forth on the cover of this Warrant.
(b) Any notice or demand to be given or made by the Company to or on the holder of this Warrant shall be sufficiently given or made if sent by mail, first-class or registered, postage prepaid, addressed to such holder at the address contained in the corporate records of the Company.
Section 8. Validity and Interpretation. The validity, interpretation and performance pursuant to this Warrant shall be governed by the law of the State of Tennessee.
Dated as of , 2007.
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: | ||
Title: |
6
SUBSCRIPTION FORM
To Be Executed By The Registered Holder
To Exercise Warrants
TO: FRANKLIN FINANCIAL NETWORK, INC.
The undersigned registered holder hereby irrevocably elects to exercise this Warrant to purchase Shares of Common Stock covered hereby, and requests that a certificate or certificates for such Shares be issued in the name of:
(Name)
(Address)
(Taxpayer Identification Number)
and be delivered to
(Name)
at
(Address)
and, if such number of shares shall not be all the Common Stock evidenced by this Warrant, that a new Warrant for the balance of such Shares be registered in the name of and delivered to, the registered holder at the address stated below.
Dated: Signature:
(Address)
(Taxpayer Identification Number)
7
Certificate No.
FRANKLIN FINANCIAL NETWORK, INC.
FRANKLIN, TENNESSEE
Warrant to Purchase
Common Stock
LEGEND: THIS WARRANT HAS BEEN ISSUED UNDER AN EXEMPTION FROM REGISTRATION UNDER THE FEDERAL SECURITIES ACT OF 1933 AND UNDER THE SECURITIES ACTS OF CERTAIN STATES. THIS WARRANT HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933. THIS WARRANT MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF REGISTRATION, OR THE AVAILABILITY OF AN EXEMPTION FROM REGISTRATION, UNDER THE SECURITIES ACT OF 1933. FURTHERMORE, NO OFFER, SALE, TRANSFER, PLEDGE OR HYPOTHECATION IS TO TAKE PLACE WITHOUT THE PRIOR WRITTEN APPROVAL OF COUNSEL OF THE ISSUER, OR PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933. THIS WARRANT IS NOT A BANK ACCOUNT AND IS NOT FDIC INSURED.
Void after 5:00 p.m. Local Time, Franklin, Tennessee, , 2012 (Expiration Date).
FRANKLIN FINANCIAL NETWORK, INC. (the Company), a Tennessee corporation, certifies and agrees that, for value received, is entitled to purchase from the Company shares of the Common Stock, $ par value per share, of the Company (the number and character of such shares being subject to adjustment as provided in the Warrant Agreement, which is available from the Company) at a purchase price (the Warrant Price) of $12.00 per share. The Warrant Holder is entitled to purchase such Warrant Shares, in whole or in part, at any time before the Expiration Date.
Dated: , 2007
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President | Secretary |
SUBSCRIPTION FORM
To be Executed by the Registered Holder
To Exercise Warrants
TO: FRANKLIN FINANCIAL NETWORK, INC.
The undersigned registered holder hereby irrevocably elects to exercise this Warrant to Purchase Shares of Common Stock covered hereby, and requests that a certificate or certificates for such Shares be issued in the name of:
(Name)
(Address)
(Taxpayer Identification Number)
and be delivered to
(Name)
at
(Address)
and, if such number of shares shall not be all the Common Stock evidenced by this Warrant, that a new Warrant for the balance of such Shares be registered in the name of and delivered to, the registered holder at the address stated below.
Dated: Signature:
(Address)
(Taxpayer Identification Number)
Exhibit 10.17
FRANKLIN SYNERGY BANK
EMPLOYMENT AGREEMENT
RICHARD E. HERRINGTON
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 th day of January, 2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Richard E. Herrington (Executive).
WHEREAS, the Executive is currently serving as the President and Chief Executive Officer of Franklin Synergy Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position. The Executive shall be employed as the President and Chief Executive Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment. Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation. The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of Three Hundred Twenty-one Thousand, Nine Hundred Eighty-four ($321,984.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of Three Hundred Twenty-one Thousand, Nine Hundred Eighty-four ($321,984.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
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(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits. The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled. If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause. The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any farther payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
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7. Termination Without Cause. The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as President and Chief Executive Officer. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation. The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of this Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which she ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason. The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
(1) a material diminution of the Executives base salary,
(2) a material diminution of the Executives authority, duties, or responsibilities,
(3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors,
(4) a material change in the geographic location at which the Executive must perform services, or
(5) any other action or inaction that constitutes a material breach by the Bank of this Agreement.
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason. In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control.
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or
(ii) Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
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(c) In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule.
(d) In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
12. Retirement. Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel. The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
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16. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of the Agreement shall be effective unless and until made in such a writing.
17. Assignment. This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
/s/ Richard E. Herrington |
By: |
/s/ Sally P. Kimble |
||||
RICHARD E. HERRINGTON | SALLY P. KIMBLE | |||||
Its: EXECUTIVE VICE PRESIDENT | ||||||
AND CHIEF FINANCIAL OFFICER |
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Exhibit 10.18
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
KEVIN A. HERRINGTON
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 th day of January, 2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Kevin A. Herrington (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/Chief Operations Officer of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the Executive Vice President and Chief Operations Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment . Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation . The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of One Hundred Fifty Six Thousand Nine Hundred Twenty Nine ($156,929.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Fifty Six Thousand Nine Hundred Twenty Nine ($156,929.00) Dollars The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
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7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President/Chief Operations Officer. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation . The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control .
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by |
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a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) | In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. |
(d) | In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants. |
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any
5
disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement ; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment . This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
/s/ Kevin A. Herrington |
By: |
/s/ Richard E. Herrington |
||||
KEVIN A. HERRINGTON |
RICHARD E. HERRINGTON Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.19
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
SALLY E. BOWERS
THER EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 TH day of January, 2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Sally E. Bowers (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/Chief Mortgage Officer of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the Executive Vice President/Chief Mortgage Officer , and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote her full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of her abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment . Subject to the terms and conditions hereof, the term of the Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of the Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of the Agreement.
3. Compensation . The Bank shall pay to the Executive compensation for her services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of One Hundred Thirty Thousand ($130,000.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board
1
Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Thirty Thousand ($130,000.00) Dollars per annum. The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under the Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform her duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of her duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would Bank, in Banks reasonable opinion.
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7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President/Chief Mortgage Officer. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of the action by the Board of Directors, or at such other time as may be agreed upon by both parties to the Agreement. Except as provided in Section 10 and Section 11 of the Agreement, following such termination of the contract, all rights, obligations and duties of both parties relative to the Agreement shall cease and no benefits shall be payable under the Agreement.
8. Voluntary Resignation . The Executive may resign from her employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from her employment with the Bank hereunder with Good Reason. For purposes of the Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of the Agreement. |
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times her then current base salary plus two (2) times her three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control .
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of the Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate her employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of her principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a |
4
director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) | In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times her then current base salary plus two (2) times her three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of her termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under ther Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. |
(d) | In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants. |
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of the Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of the Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . The Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of
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America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of the Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of the Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that the selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about the Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement; Amendment. The Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of the Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of the Agreement shall be effective unless and until made in such a writing.
17. Assignment . The Agreement is personal to the Executive and the Executive may not assign any of her rights or duties hereunder, but the Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform the Agreement in the same manner and to the same extent that the Bank would be required to perform the Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of ther Agreement shall not affect the validity or enforceability of any other provision of ther Agreement, which shall remain in full force and effect.
19. Counterparts . The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused the Agreement to be signed by its duly authorized officer, and the Executive has executed the Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
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By: |
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SALLY E. BOWERS | RICHARD E. HERRINGTON | |||||
Its: CHIEF EXECUTIVE OFFICER |
6
Exhibit 10.20
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
ASHLEY P. HILL, III
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 day of January, 2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Ashley P. Hill, III (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/Chief Banking Officer of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the Executive Vice President and Chief Banking Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment. Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation . The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of One Hundred Sixty One Thousand and Ten ($161,010.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors
1
or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Sixty One Thousand and Ten ($161,010.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its
2
affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
7. Termination Without Cause. The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President/Chief Banking Officer. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation. The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason. The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent -
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control .
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a |
4
director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) | In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. |
(d) | In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants. |
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of
5
America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment . This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
/s/ Ashley P. Hill, III |
By: |
/s/ Richard E. Herrington |
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ASHLEY P. HILL, III |
Its: |
RICHARD E. HERRINGTON CHIEF EXECUTIVE OFFICER |
6
Exhibit 10.21
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
J. MYERS JONES, III
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 TH day of January,_2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and J. Myers Jones, III (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/Chief Credit Officer of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position. The Executive shall be employed as the Executive Vice President/Chief Credit Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment. Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation. The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of One Hundred Eighty One Thousand Three Hundred Sixteen ($181,316.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the
1
Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Eighty One Thousand Three Hundred Sixteen ($181,316.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits. The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled. If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause. The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its
2
America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment. This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
/s/ J. Myers Jones, III | By: | /s/ Richard E. Herrington | ||||||
J. MYERS JONES, III | RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.22
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
DAVID J. MCDANIEL
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 TH day of January, 2014, between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and David J. McDaniel (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/Chief Retail Officer/Williamson County Community President of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position. The Executive shall be employed as the Executive Vice President/Chief Retail Officer/Williamson County Community President, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment. Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation. The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
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(a) The Executive shall be paid a base salary of One Hundred Seventy Thousand Three Hundred Fifty Two ($170,352.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Seventy Thousand Three Hundred Fifty Two ($170,352.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its
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affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President/Chief Retail Officer/Williamson County Community President,. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation . The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent -
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control.
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) | A Change in Control shall mean: |
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by |
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a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) | In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. |
(d) | In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants. |
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of
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the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment. This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||
/s/ David J. McDaniel |
By: |
/s/ Richard E. Herrington |
||
David J. McDaniel | Richard E. Herrington | |||
Its: | Chief Executive Officer |
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Exhibit 10.23
FRANKLIN FINANCIAL NETWORK, INC.
EMPLOYMENT AGREEMENT
SALLY P. KIMBLE
THE EMPLOYMENT AGREEMENT (the Agreement) is made as of the 29 th day of January, 2014, between Franklin Financial Network, Inc., a Tennessee corporation (the Company) and Sally P. Kimble (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President/ Chief Financial Officer of the Company;
WHEREAS, the Executive and the Company desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Company, which Employment Agreement supersedes all previous Employment Agreements entered into between the Company and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Company and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position. The Executive shall be employed as the Executive Vice President/Chief Financial Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Company or as may be set forth in the bylaws of the Company (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Companys offices located in Franklin, Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote her full time and attention to the business of the Company and to perform such duties as may be required of her to the best of her abilities, and will not accept any other employment while employed by the Company without the prior written consent of the Company.
2. Term of Employment. Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Company. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation. The Company shall pay to the Executive compensation for her services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of One Hundred Fifty-Six Thousand ($156,000.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of One Hundred Fifty-Six Thousand ($156,000.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Company.
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(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by her with respect to the business of the Company, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Company.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Company in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits. The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Company and approved by the Board of Directors.
5. Disability or Disabled. If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company, the Company may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Company may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause. The Company may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform her duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Company identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Company pursuant to the section; (ii) the willful misconduct of the Executive in the performance of her duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Company; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Company, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Company under the Tennessee or applicable Federal Companying regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Company, in Companys reasonable opinion.
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7. Termination Without Cause. The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President/Chief Financial Officer. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation. The Executive may resign from her employment with the Company hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of this Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which she ceases to be employed by the Company, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason. The Executive may resign from her employment with the Company hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied -
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent -
(1) a material diminution of the Executives base salary,
(2) a material diminution of the Executives authority, duties, or responsibilities,
(3) a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors,
(4) a material change in the geographic location at which the Executive must perform services, or
(5) any other action or inaction that constitutes a material breach by the Company of this Agreement.
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(y) the Executive must give notice to the Company of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Company shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason. In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times her then current base salary plus two (2) times her three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Companys normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control.
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate her employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of her principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Company, or any similar transaction, in any case in which the shareholders of the Company prior to such transaction hold less than a majority of the voting power of the resulting entity; or
(ii) Individuals who constitute the Incumbent Board (as herein defined) of the Company cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Company on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
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(c) In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times her then current base salary plus two (2) times her three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Company, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of her termination. The Companys obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Companys normal payroll schedule.
(d) In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
12. Retirement. Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel. The Executive represents and warrants to the Company that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Company agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Company shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Company further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Company. The Executive and the Company each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
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16. Entire Agreement; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Company and the Executives, and no amendment or termination of the Agreement shall be effective unless and until made in such a writing.
17. Assignment. This Agreement is personal to the Executive and the Executive may not assign any of her rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company to expressly assume and agree to perform the Agreement in the same manner and to the same extent that the Company would be required to perform the Agreement had no succession occurred.
18. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN FINANCIAL NETWORK, INC. | |||||||
/s/ Sally P. Kimble |
By: |
/s/ Richard E. Herrington |
||||||
SALLY P. KIMBLE | RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.24
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
RICHARD E. HERRINGTON
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29th day of January ,2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Richard E. Herrington (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(1) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(2) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
(3) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
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(4) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(5) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
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(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date
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or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(1) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation
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that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
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(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
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(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive and his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
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10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
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16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
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21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
/s/ Richard E. Herrington |
By: |
/s/ Sally P. Kimble |
||||
RICHARD E. HERRINGTON | SALLY P. KIMBLE | |||||
Its: EXECUTIVE VICE PRESIDENT | ||||||
AND CHIEF FINANCIAL OFFICER |
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Exhibit 10.25
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
KEVIN A. HERRINGTON
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29 th day of January, 2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Kevin A. Herrington (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons,
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and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
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(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
/s/ Kevin A. Herrington |
By: |
/s/ Richard E. Herrignton |
||||
KEVIN A. HERRINGTON | RICHARD E. HERRIGNTON | |||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.26
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
SALLY E. BOWERS
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29THday of January, 2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Sally E Bowers. (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons,
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and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
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(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-l(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
/s/ Sally E. Bowers |
By: |
/s/ Richard E. Herrington |
||||||
SALLY E. BOWERS | RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.27
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
ASHLEY P. HILL, III
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29 TH day of January, 2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Ashley P. Hill, III (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. | Administration of this Agreement. |
(a) Administrator duties. This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents. In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions. The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
(c) Indemnity of Administrator. The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages,
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(c) Indemnity of Administrator. The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information. To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator. In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. | Definitions |
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists
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of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause. The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. | Term |
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. | Covenants Against Competition, Solicitation, or Disclosure of Confidential Information. |
(a) Competition. In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation. In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information. In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract. The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies. The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement. If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. | Non-Compete Payment. |
(a) Payment. In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
(b) Potential six-month delay under Section 409A. If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered
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deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause. Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. | Claims Procedure. |
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. | Return of Records and Property. |
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. | Remedies. |
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. | Payments and Funding. |
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. | Assignment of Rights; Spendthrift Clause. |
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. | Binding Effect. |
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement.
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. | Amendment of Agreement. |
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. | Interpretation. |
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. | Severability. |
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. | Governing Law, Venue, and Waiver of Right to Jury Trial. |
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. | Entire Agreement. |
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. | No Guarantee of Employment. |
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. | Tax Withholding. |
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. | Notices. |
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. | Compliance With Code Section 409A. |
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-l (h).
22. | General Limitations. |
(a) Removal. Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default. Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance. All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
/s/ Ashley P. Hill, III | By: | /s/ Richard E. Herrington | ||||||
ASHLEY P. HILL, III |
RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.28
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
J.MYERS JONES, III
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29th day of January, 2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and J. Myers Jones, III. (Executive).
WHEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
WHEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
NOW THEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons,
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and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(1) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered
6
deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
9
given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
/s/ J. Myers Jones, III |
By: | /s/ Richard E. Herrington | ||||||
J. MYERS JONES, III | RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.29
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
DAVID J. McDANIEL
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29 th day of January, 2014, between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and David J. McDaniel. (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists
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of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(1) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered
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deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause. Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding.
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause.
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1 (h).
22. General Limitations .
(a) Removal. Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||
/s/ David J. McDaniel | By: | /s/ Richard E. Herrington | ||
David J. McDaniel | Richard E. Herrington | |||
Its: Chief Executive Officer |
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Exhibit 10.30
FRANKLIN FINANCIAL NETWORK, INC.
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
SALLY P. KIMBLE
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this 29 th day of January, 2014, between Franklin Financial Network, Inc. (the Company), a Tennessee corporation and Sally P. Kimble (Executive).
W HEREAS , Executive is an employee of the Company, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Company and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Company,
W HEREAS , the Company desires to restrict, after the Executives Termination of Employment (as defined below) with the Company, the Executives availability to other banks or entities that compete with the Company,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Company hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Companys board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(1) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Company.
(2) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
(3) Indemnity of Administrator . The Company shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Companys Charter and Bylaws and under applicable law.
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(4) Information . To enable the Administrator to perform its functions, the Company shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(5) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Companys board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Company, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Company and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Company.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Company, or any similar transaction, in any case in which the shareholders of the Companys parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Company cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Company on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
(d) Confidential Information shall mean all business and other information relating to the business of the Company, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall
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be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Company with, for, or to whom the Company has provided financial products or services during the final two years of the Executives employment with the Company, or any individual, joint venturer, entity of any sort, or business partner whom the Company has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Company.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Company.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Company Holding Company Act of 1956 and that is offered by the Company, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Company.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Company, if any stock of the Company is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(l)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Company means that the Executive shall have ceased to be employed by the Company for reasons other than death, excepting a leave of absence approved by the Company. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Company and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Company if the Executive has been providing services to the Company less than twenty-four (24) months).
(k) Termination for Cause . The Company may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform her duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Company identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Company pursuant to this section; (ii) the willful misconduct of the Executive in the performance of her duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Company; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Company or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Company under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Company, in Companys reasonable opinion.
(1) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Company. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information.
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Company or establish, engage in, or become interested in any business, trade, or occupation that competes with the Company in the financial products or services industry in any county in any of the States of the United States in which the Companys business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Company and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Company. Furthermore, although not a term or condition of this Agreement, the Company and the Executive acknowledge that the Executives services have been used and are being used by the Company in executive, managerial, and supervisory capacities throughout the areas in which the Company conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Company.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Company to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Company or being provided to the customer by the Company when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Company to alter that person or entitys business relationship with the Company in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Company. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Company to terminate an employment or contractual relationship with the Company, and shall not hire any person employed by Company during the two-year period immediately before the Executives Termination of Employment or any person employed by the Company during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Company or the business of the Company, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Company has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the
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Executives Termination of Employment with the Company. The twelve (12) month durational period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Company to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Company while the Executive is serving as an officer or employee of the Company or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Company does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Company. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Company shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
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(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Company, the Executive and <his or her> or her estate and beneficiaries.
7. Return of Records and Property.
Upon the Executives Termination of Employment for any reason, or at any time upon the Companys request, the Executive shall promptly deliver to the Company: all Company and Affiliate records and all Company and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Company or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Company or an Affiliate.
8. Remedies.
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Company or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Company at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Company of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Company has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Company to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Company may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Company in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Company.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Company, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Company and by the Executive. However, if the Company determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Company may unilaterally amend this Agreement in such manner and to such an extent as the Company reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Companys right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Company agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Company shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Company further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Company. The Executive and the Company each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Company and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Company nor does it interfere with the Companys right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Company from payments under this Agreement, the Company shall withhold any taxes that are required to be withheld.
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20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Company, notice shall be given to the board of directors or to such other or additional person or persons as the Company shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Companys records, or to such other or additional person or persons as the Executive shall have designated to the Company in writing.
21. Compliance With Code Section 409A .
The Company and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Companys affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Company under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Company is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Company, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Company under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
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I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Company have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN FINANCIAL NETWORK, INC. | |||||||
/s/ Sally P. Kimble |
By: |
/s/ Richard E. Herrington |
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SALLY P. KIMBLE | RICHARD E. HERRINGTON | |||||||
Its: CHIEF EXECUTIVE OFFICER |
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Exhibit 10.31
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (Agreement) is entered into as of May 29, 2008, by and between BCG Services, Inc. (the Employer), and Franklin Financial Network, Inc., a Tennessee corporation (the Corporation), and Connie Edwards (the Employee).
1. Employment . The Employer employs the Employee and the Employee accepts employment upon the terms and conditions of this Agreement.
2. Term . The term of this Agreement shall begin on the Effective date under the Asset Purchase and Sale Agreement between Banc Compliance Group, LLC and the Employer executed on this same date and shall terminate on the third anniversary following the Effective Date. If the Asset Purchase and Sale Agreement becomes null and void in accordance with its terms, this Employment Agreement shall also become null and void. After the initial three (3) year term, this Agreement shall automatically renew for one (1) year increments, but may be cancelled by Employee or Employer upon written notice given not less than ninety (90) days prior to the annual renewal.
3. Compensation .
a. Base Salary . As compensation for the services to be rendered by Employee during the period of her employment hereunder, and upon the condition that Employee shall fully and faithfully keep and perform all of the terms and conditions hereof, Employer shall pay Employee a base salary of $97,000.00 per year, less income tax withholdings and other normal employee deductions (the Base Salary). Such Base Salary shall be payable in equal installments according to the normal payroll practices of Employer. The Corporation will consider increases in the Base Salary at the end of each year of the term of this Agreement.
b. Incentive Compensation . During the Term of this Agreement, Employee shall receive as additional compensation an amount equal to 10% of the net profits of Employer for the preceding fiscal year. Said compensation shall be payable no later than 75 days after the fiscal year ends. The term net profits as used herein shall mean the after-tax net earnings of Employer, such calculation to be made in accordance with generally accepted accounting principles. Employee shall also be eligible to participate in the Corporations Annual Officer Incentive Program; in which based on annual goals, employee may receive additional compensation; in the form of cash and/or stock options; of up to 20% of base salary. For the year ended December 31, 2008, this incentive compensation will be a minimum of $3,000.00 prorated for actual time employed in 2008.
c. Stock Options . Employee shall be eligible for stock options as may be granted under the terms and conditions of any separate stock option agreements approved by the Board of Directors of the Corporation. The Board of Directors of the Corporation shall grant the Employee stock options under the Franklin Financial Network, Inc. 2007 Qualified-Nonqualified Stock Option Plan (the Plan) to purchase 5,000 shares of the Corporations common stock at an option price equal to the fair market value of said
shares at date of grant. Such stock option shall have a term of ten (10) years from the date of grant and shall vest over five (5) years beginning one (1) year from grant date in equal annual increments. In the event the Employees employment is terminated, such option may be exercised to the extent then exercisable and not previously exercised, in accordance with the provisions of the Plan.
d. Benefits. Employee shall be eligible for any benefits offered to other employees in a similar position subject to the terms and conditions of any such benefit plans or programs. Nothing in this Agreement shall require Employer to maintain such plans or programs nor prohibit the Employer from terminating, amending or modifying such plans and programs, as the Employer, in its discretion, may deem advisable. In all events, including, but not limited to, the funding, operation, management, participation, vesting, termination, amendment or modification of such plans or programs, the Employee shall be governed by the terms of the plans and programs, as provided in such plans, programs or any contract or agreement related thereto. Nothing in this Agreement shall be deemed to modify any such benefit plan or program. Employee has elected not to participate in Employers health insurance plan and has secured personal health insurance coverage. As additional compensation for the services to be rendered by Employee during the period of her employment hereunder, and upon condition that Employee shall fully and faithfully keep and perform all of the terms and conditions hereof, Employer shall pay Employee the sum of $738.00 per month for the term of this Agreement to be used by Employee toward the payment of her personal health insurance premiums. This sum shall be capped at $738.00 per month regardless of any increase in health insurance premiums for Employee under her personal health insurance plan. The additional compensation of $738.00 per month will cease upon Employees election to participate in Employers health insurance plan.
This Agreement shall not be deemed terminated if Employer shall determine to increase the compensation of Employee for any period of time.
4. Duties and Responsibilities of Employee. The Employee is engaged as President of the Employer, to perform duties commensurate with the position of President. The precise services of the Employee may be extended or curtailed by the Employer from time to time, provided such services during the term of this Agreement shall at all times be commensurate with the position of president of the Employer.
5. Extent of Services. The Employee shall devote her entire time, attention and energies to the Employers business and will perform diligently to the best of her abilities those duties contemplated by this Agreement in a manner that promotes the interests and goodwill of the Employer. The Employee shall not during the term of this Agreement be engaged in any other business activity, whether or not such business activity is pursued for gain, profit, or other pecuniary advantage. However, the Employee may invest her assets in such form or manner as will not require her services in the operation of the affairs of the companies in which such investments are made.
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6. Disclosure of Information. The Employee acknowledges that the Employers customers confidential data as it may exist from time to time is a valuable, special, and unique asset of the Employers business. The Employee will not, during or after the term of her employment, disclose the confidential data of the Employers customers or any part thereof to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever. In the event of a breach or threatened breach by the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining the Employee from disclosing, in whole or in part, the list of the Employers customers, or from rendering any services to any person, firm, corporation, association, or other entity to whom such list, in whole or in part, has been disclosed or is threatened to be disclosed. Nothing herein shall be construed as prohibiting the Employer from pursuing any other remedies available to the Employer for such breach or threatened breach, including the recovery of damages from the Employee.
7. Expenses. The Employee may incur reasonable expenses for promoting the Employers business, including expenses for entertainment, travel, and similar items. The Employer will reimburse the Employee for all such reasonable expenses upon the Employees periodic and timely presentation of an itemized account of such expenditures in accordance with Employers policies.
8. Vacations. The Employee shall be entitled each year to a vacation of four (4) weeks, during which time her compensation shall be paid in full.
9. Force Majeure and Disability. If Employer is unable to conduct its business, or a substantial portion thereof, by virtue of governmental regulation or order, or by strike, war, fire, earthquake, hurricane, or similar acts of god, or other calamity (declared or undeclared), or because of other similar or dissimilar cause beyond control of Employer (all of which events are hereinafter sometimes referred to as Force Majeure), or in the event Employee suffers a disability which prevents her from performing her services hereunder (herein called a Disability), Employer shall, in the event the Force Majeure and/or Disability continue for at least eight aggregate weeks during any four-month period, have the right to suspend the operation of this Agreement for the duration of said Force Majeure and/or Disability (except for any benefits payable to Employee under such benefit plans generally available to all employees), and Employer shall, at its option, have the right to add a period equal to such suspension to the Term hereof.
10. Termination.
a. Without Cause . The Employer may terminate this Agreement under this Section 10(a) without cause at any time upon thirty (30) days written notice to the Employee. A termination of this Agreement by Employee without cause shall not include a termination under Section 11 hereof. Employee may terminate this Agreement without cause at any time upon sixty (60) days written notice to the Employer. In either such event, the Employee, if requested by the Employer, shall continue to render her services, and shall be paid her regular compensation up to the date of termination. If Employee terminates this Agreement without cause during the initial three year term of this agreement, the Employee shall reimburse Employer 50% of (i) the cash portion of the purchase price ($140,000.00) if the Agreement is terminated during the first year of the term, (ii) two-thirds (2/3) of the cash portion of the purchase price ($140,000) if the Agreement is terminated during the second year of the term, or (iii)one-third (1/3) of cash
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portion of the purchase price ($140,000) if the Agreement is terminated during the third year of the term. Purchase price is defined as the price paid by the corporation to purchase Employees business entity formerly known as Banc Compliance Group, LLC with the full cash portion of the purchase price being $140,000.
b. With Cause . The Employer may terminate this Agreement with cause upon two (2) weeks written notice to Employee The Employee may terminate this Agreement with cause at any time upon two (2) weeks written notice to Employer. In either such event, the Employee, if requested by the Employer, shall continue to render her services, and shall be paid her regular compensation up to the date of termination.
c. Death or Disability . This Agreement shall be terminated upon the death or disability of Employee. The disability of Employee shall refer to the inability of Employee, for physical or mental health reasons, to provide her material services to the Employer on a substantially full time basis which period continues for a continuous uninterrupted period of twelve (12) consecutive months.
As used in this Section, termination for cause shall be deemed to have occurred if either party has breached this Agreement and the non-breaching party gives notice in writing, delivered to the breaching party and providing ten (10) calendar days, from the date of delivery of the notice, within which the breaching party has the opportunity to cure, if possible, the breach. In addition, cause for termination shall exist if Employee engages in any of the following conduct while an employee of the Employer: (1) willful and knowing dishonesty in communication of any kind on any material subject for any purpose either to the Employer or to any person or entity for or on behalf of the Employer; (2) obtaining from any person or entity, other than from the Employer, anything of value in return for or because of rendering service or advice which, under the circumstances, might reasonably be construed as part of the duties expected of an employee of the Employer; (3) theft, embezzlement, false entries on records, misapplication of funds or property, misappropriation of any asset, any conduct resulting in conversion of any kind, any final action or fine taken against Employee by a regulatory authority, or any actual or constructive fraud; (4) at any time during or after employment at the Employer, imparting confidential information, whether proprietary or non-proprietary, to any person other than (i) an authorized employee of the Employer; or (ii) as required by law, or (iii) as part of a privileged communication to an attorney; (5) gross neglect of duty, including, but not limited to, failure or refusal to attend to the duties of employment at the Employer; (6) participating in any conduct involving moral turpitude or which results in public disgrace including, but not limited to, conduct for which there is probable cause to believe that, if criminally prosecuted, such conduct would be adjudged felonious; (7) counseling, advising, assisting, procuring or aiding any employee of the Employer in any above-recited conflict of interest; (8) knowing, believing or having reason to know or believe that an employee of the Employer has, is, or is about to engage in any above-recited conflict of interest and not revealing said knowledge or belief and the reason for it to the Employer; (9) receiving, during the term of this Agreement, compensation, income, anything of value, or a future interest in or future entitlement to compensation, income or a thing of value, from any person or entity who or which is engaged in the same or substantially the same business as the Employer in the same product, service or geographical market, except stock dividends and/or capital gains from passive investments in the same or substantially the same businesses by Employee made in the ordinary course of business and as
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part of Employees investment portfolio. However, cause shall not be deemed to exist merely because of a difference of opinion between Employee and the Employer, or any employees, directors or officers of either, as to philosophy of management or other personal beliefs.
11. Termination upon Sale of Business. Notwithstanding anything to the contrary, the Employer or Employee may terminate this Agreement upon thirty (30) days notice to the Employee or Employer upon the happening of any of the following events:
a. the sale, transfer, or lease by the Corporation or Employer of substantially all of its assets to a single purchaser or to a group of associated purchasers;
b. a decision by the Corporation or Employer to terminate its business;
c. the merger, consolidation, or other business combination of the Corporation or Employer in a transaction in which the shareholders of the Employer receive less than fifty percent (50%) of the outstanding voting shares of the new or continuing corporation.
12. Competition During and After Term. Employee agrees that during the Term hereof and for one (1) year after the termination of this Agreement, Employee will not Compete with the Employer. The term Compete shall refer to Employee, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, stockholder, or otherwise, (i) allowing her name to be used by, or establish, engage in, participate in the organization of, or become interested in any business, trade or occupation similar to the business being conducted by Employer in any of the States of the United States in which Employers business is presently being conducted; (ii) soliciting the employment of any employees of the Employer; or (iii) soliciting business from the customers of Employer. Notwithstanding the preceding sentence, the term Compete shall not include Employee becoming a compliance employee of a bank or other financial institution within the period of one (1) year after the expiration of the Term. Employer and Employee acknowledge that during the Term of Employees employment, Employee will acquire special knowledge and/or skill that she can effectively utilize in competition with Employer. Furthermore, although not a term or condition of this Agreement, Employer and Employee acknowledge that, as of the date hereof, it is reasonably contemplated that Employees services will be utilized by Employer in executive, managerial, and/or supervisory capacities throughout the areas in which Employer conducts its business, and in the general operation of Employers business wherever it is being conducted, throughout the United States. The foregoing provisions of this paragraph 12 shall not apply if (a) Employee terminates this Agreement for cause under paragraph 10(b), (b) Employer terminates this Agreement without cause under paragraph 10(a), (c) this Agreement is terminated by either Employer or Employee under paragraph 11, or (d) this Agreement is terminated under paragraph 2 at the end of the initial term or any subsequent term.
Employee agrees that the remedy at law for any breach by her of the covenants contained herein will be inadequate, and that in the event of a violation of the covenants contained herein, in addition to any and all legal and equitable remedies which may be available, the said covenants may be enforced by an injunction in a suit in equity, without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the
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commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section shall be deemed to be a series of separate covenants, one for each county of each state where Employer does business. If, in any judicial proceeding, a court shall refuse to enforce any or all of the separate covenants deemed included in such action, then such unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of such proceeding to the extent necessary to permit the remaining separate covenants to be enforced in such proceeding. Furthermore, if in any judicial proceeding a court shall refuse to enforce any covenant by reason of the duration or extent thereof, such covenant shall be construed to have only the maximum duration or extent permitted by law.
13. Notices. Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail to her residence, in the case of the Employee, or to the Corporations principal office, in the case of the Employer.
14. Waiver of Breach. The waiver by the Employer of a breach of any provision of this Agreement by the Employee shall not operate or be construed as a waiver of any subsequent breach by the Employee. No waiver shall be valid unless in writing and signed by an authorized officer of the Employer.
15. Assignment. The Employee acknowledges that the services to be rendered by her are unique and personal. Accordingly, the Employee may not assign any of her rights or delegate any of her duties or obligations under this Agreement. The rights and obligations of the Employer under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Employer.
16. Entire Agreement. This Agreement contains the entire understanding of the parties. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.
17. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee.
21. Legal Consultation. Both parties have been accorded a reasonable opportunity to review this Agreement with legal counsel prior to executing this Agreement.
IN WITNESS WHEREOF , the parties hereto have executed this Agreement as of the date and year first above written.
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FRANKLIN FINANCIAL NETWORK: | ||
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BCG SERVICES, INC. | ||
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CONNIE EDWARDS: | ||
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7
Exhibit 10.32
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (Agreement) is entered into as of September 25, 2008, by and between Franklin Synergy Bank (the Employer), and Joseph Bowman (the Employee).
1. Employment. The Employer employs the Employee and the Employee accepts employment upon the terms and conditions of this Agreement.
2. Duties. Employee shall serve as Chief Lending Officer for Employer and agrees to perform such duties as are customarily performed by a person in such position. Additionally, Employer agrees that Employee shall be an executive vice-president, a member of Employers management team as well as the chair of its loan committee.
3. Term. The term of this Agreement shall begin on September 25, 2008 and shall terminate on September 25, 2013. After the initial five (5) year term, this Agreement shall automatically renew for one (1) year increments, but may be cancelled by Employee or Employer upon written notice given not less than ninety (90) days prior to the annual renewal.
4. Compensation.
(a) Base Salary . As compensation for the services to be rendered by Employee during the period of employment hereunder, and upon the condition that Employee shall fully and faithfully keep and perform all of the terms and conditions hereof, Employer shall pay Employee a base salary of $170,000.00 per year, less income tax withholdings and other normal employee deductions (the Base Salary). Such Base Salary shall be payable in equal installments according to the normal payroll practices of Employer. The Employer will consider increases in the Base Salary at the end of each year during the term of this Agreement.
(b) Stock Options . Employee shall be eligible for such stock options as may be granted under the terms and conditions of any separate stock option agreements (the Stock Options) approved by the Board of Directors (Board) of Franklin Financial Network (FFN). The Board shall grant Stock Options to the Employee pursuant to the provisions of the Franklin Financial Network, Inc. 2007 Qualified-Nonqualified Stock Option Plan (the Plan) to purchase 35,000 shares of FFNs common stock at an option price equal to the fair market value of said shares as of the date of grant. The Stock Options shall have a term of ten (10) years from the date of grant and shall vest over a period of three (3) years in twelve (12) equal quarterly installments beginning three (3) months after the date of grant. In the event the Employees employment is terminated, the Stock Options may be exercised to the extent then exercisable and not previously exercised, in accordance with the provisions of the Plan.
(c) Benefits . Employee shall be eligible for any benefits offered to other employees in a similar position subject to the terms and conditions of any such benefit plans or programs. Such benefits shall include, without limitation, an automobile allowance of Four Hundred Dollars ($400.00) per month. Except as otherwise provided
herein or in the Insurance Agreement attached hereto, Employer shall not be required to maintain such plans or programs or be prohibited from terminating, amending or modifying such plans and programs, as the Employer, in its discretion, may deem advisable. In all events, including, but not limited to, the funding, operation, management, participation, vesting, termination, amendment or modification of such plans or programs, the Employee shall be governed by the terms of such plans and programs or any contract or agreement related thereto. Nothing in this Agreement shall be deemed to modify any such benefit plan or program.
(d) Bonuses . Employee shall be eligible for bonuses (salary, cash and/or stock options) under the same terms and conditions as provided to Employers chief executive officer and other members of Employers management team. Should the amount of any such bonuses differ, Employee shall be entitled to receive the higher amount.
5. Disclosure of Information. The Employee acknowledges that the Employers customers confidential data as it may exist from time to time is a valuable, special, and unique asset of the Employers business. The Employee will not, during or after the term of his employment, disclose the confidential data of the Employers customers or any part thereof to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever unless required by Court order or governmental agency.
6. Force Majeure and Disability. If Employer is unable to conduct its business, or a substantial portion thereof, by virtue of governmental regulation or order, or by strike, war, fire, earthquake, hurricane, or similar acts of god, or other calamity (declared or undeclared), or because of other similar or dissimilar cause beyond control of Employer (all of which events are hereinafter sometimes referred to as Force Majeure ), or in the event Employee suffers a disability which prevents him from performing his services hereunder (herein called a Disability ), Employer shall, in the event the Force Majeure and/or Disability continues for at least eight (8) aggregate weeks during any four (4) month period, have the right to suspend the operation of this Agreement for the duration of said Force Majeure and/or Disability (except for any benefits payable to Employee pursuant to the Insurance Agreement or under such benefit plans generally available to all employees), and Employer shall, at its option, have the right to add a period equal to such suspension to the term hereof. Notwithstanding the above, if Employers inability to conduct its business is due to the violation of any governmental regulation by Employer, then Employer shall not be entitled to suspend the operation of this Agreement.
7. Termination.
(a) Employer Termination of Agreement Without Cause . The Employer may terminate this Agreement under this Section 7(a) without cause at any time. If Employer terminates the Agreement without cause, Employee shall be paid one and one-half (1 1 / 2 ) times his then current annual base salary in a lump sum and without discount within five (5) business days of such termination. Additionally, upon such termination, any and all non-qualified stock options which have been granted to Employee shall become fully vested and exercisable by Employee in accordance with the Plan.
(b) Employer Termination of Agreement With Cause . The Employer may terminate this Agreement with cause upon two (2) weeks prior written notice to Employee.
(c) Employee Termination of Agreement Without Cause . The Employee may terminate this Agreement without cause at any time upon thirty (30) days prior written notice to Employer. If such termination occurs during the first six (6) months of this Agreement, Employee shall be subject to the competition restrictions contained in Section 9 hereof for a period of sixty (60) days from the date of such termination. If Employee terminates this Agreement without cause after six (6) months of employment and through the initial five (5) year term of the Agreement, the Employee shall be paid one (1) year of current annual base salary and shall be subject to the competition restrictions contained in Section 9 hereof for a period of one (1) year from the date of such termination.
(d) Employee Termination of Agreement With Cause . The Employee may terminate this Agreement with cause at any time upon two (2) weeks prior written notice to Employer. The Employee, if requested by the Employer, shall continue to render his services, and shall be paid his regular compensation up to the date of termination. If Employee terminates this Agreement with cause, the Employee, will be paid one (1) year of current annual base salary in a lump sum within five (5) business days of such termination.
(e) Death or Disability . This Agreement shall be terminated upon the death or disability of Employee. The disability of Employee shall refer to the inability of Employee, for physical or mental health reasons, to materially perform his duties to the Employer on a substantially full time basis which period continues uninterrupted for a period of twelve (12) consecutive months. In such event, the Stock Options will be exercisable in accordance with the Plan.
(f) Retirement . This Agreement shall be terminated upon voluntary retirement of Employee. Employee shall be eligible to retire following the time as which his age plus years of service with Employer equals or exceeds sixty-three (63). Upon retirement Employee will receive his current annual base salary for one (1) year and will be subject to the competition restrictions of Section 9 hereof for a period of one (1) year from the date of retirement. In such event, the Stock Options will be exercisable in accordance with the Plan.
For purposes of termination of the Agreement by Employer, cause shall be defined as Employees conviction of any felony during the term of this Agreement. For purposes of termination of the Agreement by Employee, cause shall be defined as Employers violation of the terms of this Agreement. Prior to the termination of this Agreement by Employee for cause, Employee shall provide written notice to Employer describing the basis for termination and allowing a period of ten (10) calendar days within which Employer may cure or remedy the violation and thereby remove the grounds for such termination.
8. Change in Control . Notwithstanding anything to the contrary, the Employer or Employee may terminate this Agreement upon thirty (30) days prior written notice to the other upon the happening of the merger, consolidation, or other business combination of the Employer.
The Employee will receive two (2) years current annual base salary if the Employer or Employee terminates this Agreement under this Section 8 payable in a lump sum without discount within five (5) business days of such termination. In such event, the Stock Options will be exercisable and vest in accordance with the Plan.
9. Competition During and After Term. Pertaining to Section 7(c) and 7(f) hereof, Employee agrees that during the term hereof and after the termination of this Agreement as stipulated in Section 7(c) and 7(f), Employee will not compete with the Employer. The term compete shall refer to Employee, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, stockholder, or otherwise, (i) allowing his name to be used by, or establish, engage in, or participate in the organization of any bank, in Williamson County, Tennessee, or any county contiguous thereto; (ii) soliciting the employment of any employees of the Employer; or (iii) soliciting business from the customers of Employer. The foregoing provisions of this Section 9 shall not apply if (a) Employer terminates this Agreement without cause under Section 7(a), (b) Employer terminates this Agreement with cause under Section 7(b), (c) Employee terminates this Agreement with cause under Section 7(d), (d) this Agreement is terminated by either Employer or Employee under Section 8, or (d) this Agreement is terminated under Section 3 at the end of the initial term or any subsequent term.
10. Notices . Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail to his residence, in the case of the Employee, or to its principal office, in the case of the Employer.
11. Attorneys Fees. Each party agrees that in the event of a breach by a party of any provision of this Agreement, the non-breaching party shall be entitled, in addition to all other remedies to which the non-breaching party may be entitled, to recover from the breaching party all reasonable attorney fees and expenses incurred by the non-breaching party in enforcing this Agreement.
12. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the breaching party. No waiver shall be valid unless in writing and signed by Employee or an authorized officer of the Employer, as applicable.
13. Assignment. The Employee acknowledges that the services to be rendered by him are unique and personal. Accordingly, the Employee may not assign any of his rights or delegate any of his duties or obligations under this Agreement. The rights and obligations of the Employer and Employee under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Employer and Employee.
14. Entire Agreement. This Agreement contains the entire understanding of the parties. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.
15. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee.
16. Legal Consultation. Both parties have been accorded a reasonable opportunity to review this Agreement with legal counsel prior to executing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
EMPLOYER: | ||
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EMPLOYEE: | ||
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EXHIBIT A
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT is attached to and made a part of that certain Employment Agreement dated September 25, 2008, between Franklin Synergy Bank ( Employer ) and Joseph Bowman ( Employee ).
IT IS UNDERSTOOD AND AGREED THAT WHILE THIS INSURANCE AGREEMENT IS ISSUED IN CONNECTION WITH AND IN CONSIDERATION OF THE EMPLOYMENT AGREEMENT, THIS INSURANCE AGREEMENT SHALL BE CONSIDERED AN INDEPENDENT CONTRACT AND SHALL NOT BE ADVERSELY AFFECTED BY THE TERMINATION, CANCELLATION OR EXPIRATION OF THE EMPLOYMENT AGREEMENT.
FOR AN IN CONSIDERATION OF Employees agreement to accept employment with Employer and relinquish its existing health insurance coverage with Green Bank, Employer agrees as follows:
1. Employer agrees to provide at its expense health insurance benefits to Employee and his spouse pursuant to the terms of a group health and dental plan with Franklin Synergy Bank (the Health Plan ) beginning October 1, 2008. A summary of the benefits available to Employee and his spouse under the Health Plan is contained in Addendum 1 to this Insurance Agreement.
2. In the event Employer elects to provide group health benefits through another company, Employer agrees that the replacement health plan will contain such coverages and benefits that when evaluated as a whole, would be reasonably considered to be equal to or better than the coverages and benefits outlined in Addendum 1.
3. Employer shall provide such health insurance benefits to Employee and his spouse until both of them have reached age 65. If the age of eligibility for government sponsored insurance (such as Medicare/Medicaid) is extended by law, then Employer shall continue to provide such health insurance benefits until Employee and his spouse have reached the age of such eligibility.
4. Notwithstanding the terms of this Insurance Agreement contained hereinabove, in the event Employee accepts employment with another bank in Williamson County, Tennessee, or any county contiguous thereto, then Employers obligation to provide health insurance benefits to Employee and his spouse shall cease as of the date Employee commences such new employment.
EXECUTED by the undersigned this 25 th day of September, 2008.
EMPLOYER: | ||
FRANKLIN SYNERGY BANK | ||
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EMPLOYEE: | ||
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PPO Benefit Summary | Page 1 of 4 |
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Group Name: Network: Effective Date: |
Franklin Synergy Bank Blue Network S 9/1/2008 |
PPO Benefits |
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Benefit Features |
Network Providers | Out-of-Network Providers [2] | ||||||||
Annual Deductible |
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Individual |
$ | 2,500 | $ | 5,000 | ||||||
Family |
$ | 5,000 | $ | 10,000 | ||||||
Annual Out-of-Pocket Maximum Amount |
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Individual |
$ | 5,000 | $ | 15,000 | ||||||
Family |
$ | 10,000 | $ | 30,000 | ||||||
Dependent Age Limit |
To age 24 | |||||||||
Lifetime Maximum Benefit |
$5,000,000 | |||||||||
Pre-Existing Waiting Period [1] |
12 months | |||||||||
4th Quarter Deductible Carryover Provision |
Included | |||||||||
Benefits for Covered Services |
Network Benefits | Out-of-Network Benefits [2] | ||||||||
Practitioner Office Services |
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Primary Care Office Visits [3] |
$30 Copay | 60% after Deductible | ||||||||
Specialist Office Visits |
$50 Copay | 60% after Deductible | ||||||||
Office Surgery [5] |
80% after Deductible | 60% after Deductible | ||||||||
Routine Diagnostic Lab, X-Ray, & Injections |
No Additional Copay | 60% after Deductible | ||||||||
Advanced Radiological Imaging [6] |
80% after Deductible | 60% after Deductible | ||||||||
Provider-Administered Specialty Drugs [11] |
$100 Copay | 60% after Deductible | ||||||||
Preventive Health Care Services |
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Well Child Care (to age 6) |
$30 Copay | 60% after Deductible | ||||||||
Annual Well Woman Exam |
$30 Copay | 60% after Deductible | ||||||||
Annual Mammography Screening |
No Additional Copay | 60% after Deductible | ||||||||
Annual Cervical Cancer Screening |
No Additional Copay | 60% after Deductible | ||||||||
Prostate Cancer Screening |
No Additional Copay | 60% after Deductible | ||||||||
Immunizations (to age 6) |
No Additional Copay | 60% after Deductible | ||||||||
Services Received at a Facility (includes professional and facility charges) |
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Inpatient Services [4] |
80% after Deductible | 60% after Deductible | ||||||||
Outpatient Surgery [5] |
80% after Deductible | 60% after Deductible | ||||||||
Routine Diagnostic Services-Outpatient |
100% (no Deductible) | 60% after Deductible | ||||||||
Advanced Radiological Imaging - Outpatient [6] |
80% after Deductible | 60% after Deductible | ||||||||
Provider-Administered Specialty Drugs [11] |
80% after Deductible | 60% after Deductible | ||||||||
Other Outpatient Services [7] |
80% after Deductible | 60% after Deductible | ||||||||
Emergency Care Services [10] |
$250 Copay | $250 Copay | ||||||||
Emergency Care Advanced Radiological Imaging [6] |
80% after Deductible | 80% after Deductible | ||||||||
Medical Equipment |
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Durable Medical Equipment - $2,500 annual limit |
80% after Deductible | 60% after Deductible | ||||||||
Prosthetics- $20,000 annual limit |
80% after Deductible | 60% after Deductible | ||||||||
Orthotic Appliances |
80% after Deductible | 60% after Deductible | ||||||||
Therapeutic Services [8] |
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Therapy (Limited to 20-36 visits per therapy type per year) |
80% after Deductible | 60% after Deductible | ||||||||
Skilled Nursing Facility & Rehabilitation Facility Services [4] |
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Limited to 60 days combined |
80% after Deductible | 60% after Deductible | ||||||||
Home Health Services [9] |
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Limited to 60 visits per year |
80% after Deductible | 60% after Deductible | ||||||||
Hospice Services |
100% | 60% after Deductible | ||||||||
Ambulance Service |
80% after Deductible | 80% after Deductible |
Notes:
1. | HIPAA regulations apply. A Group enrollees pre-existing condition waiting period can be reduced by enrollees applicable creditable coverage. |
2. | Out-of-network benefit payment based on BlueCross BlueShield of Tennessee maximum allowable charge. You are responsible for paying any amount exceeding the maximum allowable charge. |
3. | Applies to the following provider types: Family Practice, General Practice, Internal Medicine, 08/Gyn, Pediatrics, Nurse Practitioners and Physician Assistants. |
4. | Services require prior authorization. When using network providers outside Tennessee and all out-of-network providers, benefits will be reduced to 50% if prior authorization is not obtained and services are medically necessary. If services are not medically necessary no benefits will be provided. |
5. | Surgeries include incisions, excisions, biopsies, injection treatments, fracture treatments, applications of casts and splints, sutures, and invasive diagnostic services (e.g., colonoscopy, sigmoidoscopy and endoscopy). |
6. | CAT scans, PET Scans, MRIs, nuclear medicine and other similar technologies. |
7. | Includes services such as chemotherapy, radiation therapy, and renal dialysis. |
8. | Physical, speech, manipulative, and occupational therapies are limited to 20 visits per therapy type per year. Cardiac and pulmonary rehabilitative therapies are limited to 36 visits per therapy type per year. |
9. | Requires prior authorization. |
10. | Copay, if applicable, waived if admitted to hospital. |
11. | Refer to www.bcbst.com for Specialty Pharmacy Drug List. |
Franklin Financial Network
Group # 3439
Effective Date 10/1/2008
Network |
Delta Dental PPO | Delta Dental Premier | Out of both Networks | |||||||||
Calendar Year Maximum |
$ | 1,000 | $ | 1,000 | $ | 1,000 | ||||||
Lifetime Orthodontics Maximum |
$ | 1,000 | $ | l,000 | $ | 1,000 | ||||||
Annual Dental Services Deductible |
Per Person $50 | Per Person $50 | Per Person $50 | |||||||||
Deductible does not apply to Diagnostic and Preventive Services |
Family $150 | Family $150 | Family $150 | |||||||||
Diagnostic and Preventive Services |
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Oral examinations |
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Prophylaxis (cleanings) |
100 | % | 100 | % | 100 | % | ||||||
X-rays |
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Fluoride treatment |
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Space Maintainers |
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Basic Services |
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Restorative (fillings) |
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General anesthesia |
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Simple Extractions |
90 | % | 80 | % | 80 | % | ||||||
Periodontics (treatment of gums and bones supporting teeth) |
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Endodontics (root canal therapy) |
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Oral Surgery (extractions including surgical removal of teeth) |
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Major Services |
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Crowns cast restorations |
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Bridges |
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Partial dentures |
60 | % | 50 | % | 50 | % | ||||||
Full Dentures |
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Implants |
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Orthodontic Services |
50 | % | 50 | % | 50 | % | ||||||
Straightening of teeth for dependents to age 19 |
Age and frequency limitations apply. For a detailed description of your benefit plan, please review your Certificate of Coverage
Introduction to Delta Dental
This is a brief description of the most important features of the Delta Dental program. This program allows you to go to any dentist; however, it is to your advantage to select a participating Delta Dental dentist.
Finding a Participating Delta Dental Dentist
Delta Dental has two large networks for you to utilize. We have over 184,000 participating dental locations in the nation. Visit our Delta Dental PPO network, which has over 106,000 participating dental locations, to receive the In-Network benefits. If you visit a Delta Dental Premier dentist you will have the Out-of-Network benefits but you will not be balance billed. If your dentist is not participating in either network, you will receive the Out-of-Network benefits and may be balance billed. To verify participation status, visit Delta Dentals web site at www.DeltaDentalTn.com (choose Delta Dental PPO or Delta Dental Premier), call our Customer Service Department at 615-255-3175 inside the Nashville calling area or 1-800-223-3104 outside of Nashville, ask your group administrator, or simply ask your dentist if he/she is a participating Delta Dental dentist.
When do Benefits Start?
Your coverage will begin with Delta Dental on the effective date of your plan. Benefits are available immediately for any services you receive after the effective date of the plan. If you do not enroll when first eligible, you must wait until the first open enrollment period to enroll in the plan.
Please refer to your Certificate of Coverage for re-enrollment requirements.
Delta Dental of Tennessee
240 Venture Circle
Nashville, TN 37228
1-800-223-3104
(615) 255-3175
www.DeltaDentalTn.com
This form is not a contract of insurance. Terms and conditions are set forth in the Master Group Policy issued directly to your group administrator.
DDTN SS 12 H-DNA-Ortho (Rev 5/08)
Exhibit 10.33
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT ( Agreement ) is entered into as of September 25, 2008, by and between Franklin Synergy Bank (the Employer ), and Jere Pewitt (the Employee ).
1. Employment. The Employer employs the Employee and the Employee accepts employment upon the terms and conditions of this Agreement.
2. Duties. Employee shall serve as Senior Lending Officer for Employer and agrees to perform such duties as are customarily performed by a person in such position. Additionally, Employer agrees that Employee shall be an executive vice-president, a member of Employers management team as well as the co-chair of its loan committee.
3. Term. The term of this Agreement shall begin on September 25, 2008 and shall terminate on September 25, 2013. After the initial five (5) year term, this Agreement shall automatically renew for one (1) year increments, but may be cancelled by Employee or Employer upon written notice given not less than ninety (90) days prior to the annual renewal.
4. Compensation.
(a) Base Salary . As compensation for the services to be rendered by Employee during the period of employment hereunder, and upon the condition that Employee shall fully and faithfully keep and perform all of the terms and conditions hereof, Employer shall pay Employee a base salary of $170,000.00 per year, less income tax withholdings and other normal employee deductions (the Base Salary ). Such Base Salary shall be payable in equal installments according to the normal payroll practices of Employer. The Employer will consider increases in the Base Salary at the end of each year during the term of this Agreement.
(b) Stock Options . Employee shall be eligible for such stock options as may be granted under the terms and conditions of any separate stock option agreements (the Stock Options ) approved by the Board of Directors ( Board ) of Franklin Financial Network (FFN). The Board shall grant Stock Options to the Employee pursuant to the provisions of the Franklin Financial Network, Inc. 2007 Qualified-Nonqualified Stock Option Plan (the Plan ) to purchase 35,000 shares of FFNs common stock at an option price equal to the fair market value of said shares as of the date of grant. The Stock Options shall have a term of ten (10) years from the date of grant and shall vest over a period of three (3) years in twelve (12) equal quarterly installments beginning three (3) months after the date of grant. In the event the Employees employment is terminated, the Stock Options may be exercised to the extent then exercisable and not previously exercised, in accordance with the provisions of the Plan.
(c) Benefits . Employee shall be eligible for any benefits offered to other employees in a similar position subject to the terms and conditions of any such benefit plans or programs. Such benefits shall include, without limitation, an automobile allowance of Four Hundred Dollars ($400.00) per month. Except as otherwise provided
herein or in the Insurance Agreement attached hereto, Employer shall not be required to maintain such plans or programs or be prohibited from terminating, amending or modifying such plans and programs, as the Employer, in its discretion, may deem advisable. In all events, including, but not limited to, the funding, operation, management, participation, vesting, termination, amendment or modification of such plans or programs, the Employee shall be governed by the terms of such plans and programs or any contract or agreement related thereto. Nothing in this Agreement shall be deemed to modify any such benefit plan or program.
(d) Bonuses. Employee shall be eligible for bonuses (salary, cash and/or stock options) under the same terms and conditions as provided to Employers chief executive officer and other members of Employers management team. Should the amount of any such bonuses differ, Employee shall be entitled to receive the higher amount.
5. Disclosure of Information. The Employee acknowledges that the Employers customers confidential data as it may exist from time to time is a valuable, special, and unique asset of the Employers business. The Employee will not, during or after the term of his employment, disclose the confidential data of the Employers customers or any part thereof to any person, firm, corporation, association, or other entity for any reason or purpose whatsoever unless required by Court order or governmental agency.
6. Force Majeure and Disability. If Employer is unable to conduct its business, or a substantial portion thereof, by virtue of governmental regulation or order, or by strike, war, fire, earthquake, hurricane, or similar acts of god, or other calamity (declared or undeclared), or because of other similar or dissimilar cause beyond control of Employer (all of which events are hereinafter sometimes referred to as Force Majeure ), or in the event Employee suffers a disability which prevents him from performing his services hereunder (herein called a Disability ), Employer shall, in the event the Force Majeure and/or Disability continues for at least eight (8) aggregate weeks during any four (4) month period, have the right to suspend the operation of this Agreement for the duration of said Force Majeure and/or Disability (except for any benefits payable to Employee pursuant to the Insurance Agreement or under such benefit plans generally available to all employees), and Employer shall, at its option, have the right to add a period equal to such suspension to the term hereof. Notwithstanding the above, if Employers inability to conduct its business is due to the violation of any governmental regulation by Employer, then Employer shall not be entitled to suspend the operation of this Agreement.
7. Termination.
(a) Employer Termination of Agreement Without Cause. The Employer may terminate this Agreement under this Section 7(a) without cause at any time. If Employer terminates the Agreement without cause, Employee shall be paid one and one-half (1 1 ⁄ 2 ) times his then current annual base salary in a lump sum and without discount within five (5) business days of such termination. Additionally, upon such termination, any and all non-qualified stock options which have been granted to Employee shall become fully vested and exercisable by Employee in accordance with the Plan.
(b) Employer Termination of Agreement With Cause. The Employer may terminate this Agreement with cause upon two (2) weeks prior written notice to Employee.
(c) Employee Termination of Agreement Without Cause. The Employee may terminate this Agreement without cause at any time upon thirty (30) days prior written notice to Employer. If such termination occurs during the first six (6) months of this Agreement, Employee shall be subject to the competition restrictions contained in Section 9 hereof for a period of sixty (60) days from the date of such termination. If Employee terminates this Agreement without cause after six (6) months of employment and through the initial five (5) year term of the Agreement, the Employee shall be paid one (1) year of current annual base salary and shall be subject to the competition restrictions contained in Section 9 hereof for a period of one (1) year from the date of such termination.
(d) Employee Termination of Agreement With Cause. The Employee may terminate this Agreement with cause at any time upon two (2) weeks prior written notice to Employer. The Employee, if requested by the Employer, shall continue to render his services, and shall be paid his regular compensation up to the date of termination. If Employee terminates this Agreement with cause, the Employee, will be paid one (1) year of current annual base salary in a lump sum within five (5) business days of such termination.
(e) Death or Disability. This Agreement shall be terminated upon the death or disability of Employee. The disability of Employee shall refer to the inability of Employee, for physical or mental health reasons, to materially perform his duties to the Employer on a substantially full time basis which period continues uninterrupted for a period of twelve (12) consecutive months. In such event, the Stock Options will be exercisable in accordance with the Plan.
(f) Retirement. This Agreement shall be terminated upon voluntary retirement of Employee. Employee shall be eligible to retire following the time as which his age plus years of service with Employer equals or exceeds sixty-three (63). Upon retirement Employee will receive his current annual base salary for one (1) year and will be subject to the competition restrictions of Section 9 hereof for a period of one (1) year from the date of retirement. In such event, the Stock Options will be exercisable in accordance with the Plan.
For purposes of termination of the Agreement by Employer, cause shall be defined as Employees conviction of any felony during the term of this Agreement. For purposes of termination of the Agreement by Employee, cause shall be defined as Employers violation of the terms of this Agreement. Prior to the termination of this Agreement by Employee for cause, Employee shall provide written notice to Employer describing the basis for termination and allowing a period of ten (10) calendar days within which Employer may cure or remedy the violation and thereby remove the grounds for such termination.
8. Change in Control. Notwithstanding anything to the contrary, the Employer or Employee may terminate this Agreement upon thirty (30) days prior written notice to the other upon the happening of the merger, consolidation, or other business combination of the Employer.
The Employee will receive two (2) years current annual base salary if the Employer or Employee terminates this Agreement under this Section 8 payable in a lump sum without discount within five (5) business days of such termination. In such event, the Stock Options will be exercisable and vest in accordance with the Plan.
9. Competition During and After Term. Pertaining to Section 7(c) and 7(f) hereof, Employee agrees that during the term hereof and after the termination of this Agreement as stipulated in Section 7(c) and 7(f), Employee will not compete with the Employer. The term compete shall refer to Employee, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, stockholder, or otherwise, (i) allowing his name to be used by, or establish, engage in, or participate in the organization of any bank in Williamson County, Tennessee, or any county contiguous thereto; (ii) soliciting the employment of any employees of the Employer; or (iii) soliciting business from the customers of Employer. The foregoing provisions of this Section 9 shall not apply if (a) Employer terminates this Agreement without cause under Section 7(a), (b) Employer terminates this Agreement with cause under Section 7(b), (c) Employee terminates this Agreement with cause under Section 7(d), (d) this Agreement is terminated by either Employer or Employee under Section 8, or (d) this Agreement is terminated under Section 3 at the end of the initial term or any subsequent term.
10. Notices. Any notice required or desired to be given under this Agreement shall be deemed given if in writing sent by certified mail to his residence, in the case of the Employee, or to its principal office, in the case of the Employer.
11. Attorneys Fees. Each party agrees that in the event of a breach by a party of any provision of this Agreement, the non-breaching party shall be entitled, in addition to all other remedies to which the non-breaching party may be entitled, to recover from the breaching party all reasonable attorney fees and expenses incurred by the non-breaching party in enforcing this Agreement.
12. Waiver of Breach. The waiver by either party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any subsequent breach by the breaching party. No waiver shall be valid unless in writing and signed by Employee or an authorized officer of the Employer, as applicable.
13. Assignment. The Employee acknowledges that the services to be rendered by him are unique and personal. Accordingly, the Employee may not assign any of his rights or delegate any of his duties or obligations under this Agreement. The rights and obligations of the Employer and Employee under this Agreement shall inure to the benefit of and shall be binding upon the successors and assigns of the Employer and Employee.
14. Entire Agreement. This Agreement contains the entire understanding of the parties. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension, or discharge is sought.
15. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee.
16. Legal Consultation. Both parties have been accorded a reasonable opportunity to review this Agreement with legal counsel prior to executing this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
EXHIBIT A
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT is attached to and made a part of that certain Employment Agreement dated September 25, 2008, between Franklin Synergy Bank ( Employer ) and Jere Pewitt ( Employee ).
IT IS UNDERSTOOD AND AGREED THAT WHILE THIS INSURANCE AGREEMENT IS ISSUED IN CONNECTION WITH AND IN CONSIDERATION OF THE EMPLOYMENT AGREEMENT, THIS INSURANCE AGREEMENT SHALL BE CONSIDERED AN INDEPENDENT CONTRACT AND SHALL NOT BE ADVERSELY AFFECTED BY THE TERMINATION, CANCELLATION OR EXPIRATION OF THE EMPLOYMENT AGREEMENT.
FOR AN IN CONSIDERATION OF Employees agreement to accept employment with Employer and relinquish its existing health insurance coverage with Green Bank, Employer agrees as follows:
1. Employer agrees to provide at its expense health insurance benefits to Employee and his spouse pursuant to the terms of a group health and dental plan with Franklin Synergy Bank (the Health Plan ) beginning October 1, 2008. A summary of the benefits available to Employee and his spouse under the Health Plan is contained in Addendum 1 to this Insurance Agreement.
2. In the event Employer elects to provide group health benefits through another company, Employer agrees that the replacement health plan will contain such coverages and benefits that when evaluated as a whole, would be reasonably considered to be equal to or better than the coverages and benefits outlined in Addendum 1.
3. Employer shall provide such health insurance benefits to Employee and his spouse until both of them have reached age 65. If the age of eligibility for government sponsored insurance (such as Medicare/Medicaid) is extended by law, then Employer shall continue to provide such health insurance benefits until Employee and his spouse have reached the age of such eligibility.
4. Notwithstanding the terms of this Insurance Agreement contained hereinabove, in the event Employee accepts employment with another bank in Williamson County, Tennessee, or any county contiguous thereto, then Employers obligation to provide health insurance benefits to Employee and his spouse shall cease as of the date Employee commences such new employment.
EXECUTED by the undersigned this 25 th day of September, 2008.
EMPLOYER:
FRANKLIN SYNERGY BANK
EMPLOYEE:
PPO Benefit Summary | Page 1 of 4 |
|
Group Name: Network: Effective Date: |
Franklin Synergy Bank Blue Network S 9/1/2008 |
PPO Benefits |
||||||||||
Benefit Features |
Network Providers |
Out-of-Network
Providers [2] |
||||||||
Annual Deductible |
||||||||||
Individual |
$ | 2,500 | $ | 5,000 | ||||||
Family |
$ | 5,000 | $ | 10,000 | ||||||
Annual Out-of-Pocket Maximum Amount |
||||||||||
Individual |
$ | 5,000 | $ | 15,000 | ||||||
Family |
$ | 10,000 | $ | 30,000 | ||||||
Dependent Age Limit |
To age 24 | |||||||||
Lifetime Maximum Benefit |
$5,000,000 | |||||||||
Pre-Existing Waiting Period [1] |
12 months | |||||||||
4th Quarter Deductible Carryover Provision |
Included | |||||||||
Benefits for Covered Services |
Network Benefits |
Out-of-Network
Benefits [2] |
||||||||
Practitioner Office Services |
||||||||||
Primary Care Office Visits [3] |
$30 Copay | 60% after Deductible | ||||||||
Specialist Office Visits |
$50 Copay | 60% after Deductible | ||||||||
Office Surgery [5] |
80% after Deductible | 60% after Deductible | ||||||||
Routine Diagnostic Lab, X-Ray, & Injections |
No Additional Copay | 60% after Deductible | ||||||||
Advanced Radiological Imaging [6] |
80% after Deductible | 60% after Deductible | ||||||||
Provider-Administered Specialty Drugs [11] |
$100 Copay | 60% after Deductible | ||||||||
Preventive Health Care Services |
||||||||||
Well Child Care (to age 6) |
$30 Copay | 60% after Deductible | ||||||||
Annual Well Woman Exam |
$30 Copay | 60% after Deductible | ||||||||
Annual Mammography Screening |
No Additional Copay | 60% after Deductible | ||||||||
Annual Cervical Cancer Screening |
No Additional Copay | 60% after Deductible | ||||||||
Prostate Cancer Screening |
No Additional Copay | 60% after Deductible | ||||||||
Immunizations (to age 6) |
No Additional Copay | 60% after Deductible | ||||||||
Services Received at a Facility (includes professional and facility charges) |
||||||||||
Inpatient Services [4] |
80% after Deductible | 60% after Deductible | ||||||||
Outpatient Surgery [5] |
80% after Deductible | 60% after Deductible | ||||||||
Routine Diagnostic Services-Outpatient |
100% (no Deductible) | 60% after Deductible | ||||||||
Advanced Radiological Imaging-Outpatient [6] |
80% after Deductible | 60% after Deductible | ||||||||
Provider-Administered Specialty Drugs [11] |
80% after Deductible | 60% after Deductible | ||||||||
Other Outpatient Services [7] |
80% after Deductible | 60% after Deductible | ||||||||
Emergency Care Services [10] |
$250 Copay | $250 Copay | ||||||||
Emergency Care Advanced Radiological Imaging [6] |
80% after Deductible | 80% after Deductible | ||||||||
Medical Equipment |
||||||||||
Durable Medical Equipment - $2,500 annual limit |
80% after Deductible | 60% after Deductible | ||||||||
Prosthetics - $20,000 annual limit |
80% after Deductible | 60% after Deductible | ||||||||
Orthotic Appliances |
80% after Deductible | 60% after Deductible | ||||||||
Therapeutic Services [8] |
||||||||||
Therapy (Limited to 20-36 visits per therapy type per year) |
80% after Deductible | 60% after Deductible | ||||||||
Skilled Nursing Facility & Rehabilitation Facility Services [4] |
||||||||||
Limited to 60 days combined |
80% after Deductible | 60% after Deductible | ||||||||
Home Health Services [9] |
||||||||||
Limited to 60 visits per year |
80% after Deductible | 60% after Deductible | ||||||||
Hospice Services |
100% | 60% after Deductible | ||||||||
Ambulance Service |
80% after Deductible | 80% after Deductible |
Notes:
1. | HIPAA regulations apply. A Group enrollees pre-existing condition waiting period can be reduced by enrollees applicable creditable coverage. |
2. | Out-of-network benefit payment based on BlueCross BlueShield of Tennessee maximum allowable charge. You are responsible for paying any amount exceeding the maximum allowable charge. |
3. | Applies to the following provider types: Family Practice, General Practice, Internal Medicine, OB/Gyn, Pediatrics, Nurse Practitioners and Physician Assistants. |
4. | Services require prior authorization. When using network providers outside Tennessee and all out-of-network providers, benefits will be reduced to 50% if prior authorization is not obtained and services are medically necessary. If services are not medically necessary no benefits will be provided. |
5. | Surgeries include incisions, excisions, biopsies, injection treatments, fracture treatments, applications of casts and splints, sutures, and invasive diagnostic services (e.g., colonoscopy, sigmoidoscopy and endoscopy). |
6. | CAT scans, PET Scans, MRIs, nuclear medicine and other similar technologies. |
7. | Includes services such as chemotherapy, radiation therapy, and renal dialysis. |
8. | Physical, speech, manipulative, and occupational therapies are limited to 20 visits per therapy type per year. Cardiac and pulmonary rehabilitative therapies are limited to 36 visits per therapy type per year. |
9. | Requires prior authorization |
10. | Copay, if applicable, waived if admitted to hospital. |
11. | Refer to www.bcbst.com for Specialty Pharmacy Drug List . |
Franklin Financial Network
Group # 3439
Effective Date 10/1/2008
Network | Delta Dental | Delta Dental | Out of both | |||
PPO | Premier | Networks | ||||
Calendar Year Maximum |
$1,000 | $1,000 | $1,000 | |||
Lifetime Orthodontics Maximum |
$1,000 | $1,000 | $1,000 | |||
Annual Dental Services Deductible |
Per Person $50 | Per Person $50 | Per Person $50 | |||
Deductible does not apply to Diagnostic and Preventive Services |
Family $150 | Family $150 | Family $150 | |||
Diagnostic and Preventive Services |
||||||
Oral examinations |
||||||
Prophylaxis (cleanings) |
100% | 100% | 100% | |||
X-rays |
||||||
Fluoride treatment |
||||||
Space Maintainers |
||||||
Basic Services |
||||||
Restorative (fillings) |
||||||
General anesthesia |
||||||
Simple Extractions |
90% | 80% | 80% | |||
Periodontics (treatment of gums and bones supporting teeth) |
||||||
Endodontics (root canal therapy) |
||||||
Oral Surgery (extractions including surgical removal of teeth) |
||||||
Major Services |
||||||
Crowns cast restorations |
||||||
Bridges |
||||||
Partial dentures |
60% | 50% | 50% | |||
Full Dentures |
||||||
Implants |
||||||
Orthodontic Services |
50% | 50% | 50% | |||
Straightening of teeth for dependents to age 19 |
Age and frequency limitations apply. For a detailed description of your benefit plan, please review your Certificate of Coverage
Introduction to Delta Dental
This is a brief description of the most important features of the Delta Dental program. This program allows you to go to any dentist; however, it is to your advantage to select a participating Delta Dental dentist.
Finding a Participating Delta Dental Dentist
Delta Dental has two large networks for you to utilize. We have over 184,000 participating dental locations in the nation. Visit our Delta Dental PPO network, which has over 106,000 participating dental locations, to receive the In-Network benefits. If you visit a Delta Dental Premier dentist you will have the Out-of-Network benefits but you will not be balance billed. If your dentist is not participating in either network, you will receive the Out-of-Network benefits and may be balance billed. To verify participation status, visit Delta Dentals web site at www.DeltaDentalTn.com (choose Delta Dental PPO or Delta Dental Premier), call our Customer Service Department at 615-255-3175 inside the Nashville calling area or 1-800-223-3104 outside of Nashville, ask your group administrator, or simply ask your dentist if he/she is a participating Delta Dental dentist.
When do Benefits Start?
Your coverage will begin with Delta Dental on the effective date of your plan. Benefits are available immediately for any services you receive after the effective date of the plan. If you do not enroll when first eligible, you must wait until the first open enrollment period to enroll in the plan.
Please refer to your Certificate of Coverage for re-enrollment requirements.
Delta Dental of Tennessee
240 Venture Circle
Nashville, TN 37228
1-800-223-3104
(615) 255-3175
www.DeltaDentalTn.com
This form is not a contract of insurance. Terms and conditions are set forth in the Master Group Policy issued directly to your group administrator.
EXHIBIT 10.34
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
LEE M. MOSS
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the day of , 20 , between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Lee M. Moss (Executive).
WHEREAS, the Executive is currently serving as the President of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the President, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Murfreesboro , Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best of his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment . Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation . The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of ($240,000.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of two hundred forty thousand ($240,000.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
1
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
2
7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as President. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation . The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
3
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control .
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent |
4
Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) | In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. |
(d) | In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants. |
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank
5
shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
16. Entire Agreement ; Amendment. This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment . This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: |
FRANKLIN SYNERGY BANK | |||||||
|
By: | |||||||
Lee M. Moss | Richard E. Herrington | |||||||
Its: | Chief Executive Officer |
6
EXHIBIT 10.35
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
LEE M. MOSS
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this day of , 20 , between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Lee M. Moss (Executive).
WHEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
WHEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
NOW THEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
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(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
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(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
IN WITNESS WHEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
By: | ||||||
Lee M. Moss |
Richard E. Herrington Its: Chief Executive Officer |
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EXHIBIT 10.36
FRANKLIN SYNERGY BANK
RETENTION BONUS AGREEMENT
This Retention Bonus Agreement (the Agreement), entered into effective January 29, 2014, is by and between Lee M. Moss (Executive) and Franklin Synergy Bank (Company), located in Franklin, Tennessee.
WHEREAS, the Company is in the process of closing a merger/acquisition of MidSouth Bank, with a date of , (Closing Date);
WHEREAS, the Company values Executives past contribution;
WHEREAS, the Company will continue to need the services of the Executive in order to maximize Company value for its shareholders now and in the future; and
WHEREAS, in order to incentivize the Executive to continue his/her services to the Company, the Company desires to enter into this Agreement with the Executive providing certain benefits to the Executive if he/she continues in the employ of the Company;
NOW THEREFORE, the Company and the Executive, in exchange for the mutual promises and covenants and other consideration herein, hereby agree as follows:
1. | Retention Bonus . If Executive does not resign and is not terminated for Cause prior to the first, second or third anniversary of the Closing Date, the Company will pay to the Executive a retention bonus as described herein (Retention Bonus). The Company will pay the Retention Bonus in three equal amounts, with $20,900.00 payable on each of the first, second, and third anniversary of the Closing Date, for a total of $62,700.00, provided the Executive is actively employed with the Company on such dates. Twenty percent (20%) of the Retention Bonus will be paid in cash and eighty percent (80%) of the Retention Bonus will be paid as Restricted Stock. |
2. | Section 409A . This arrangement is intended to comply in all respects with Internal Revenue Code Section 409A governing short-term deferrals so that none of the Retention Bonus payments made under this Agreement are determined to provide, or treated as providing, for a deferral of compensation under Code Section 409A. |
3. | Entire Agreement . This Agreement contains the entire agreement and understanding of the Company and Executive concerning the payment of a retention bonus and this Agreement supersedes and replaces all prior negotiations, proposed agreements, agreements or representations whether written or oral concerning the payment of a retention bonus. The parties agree and acknowledge that neither the Company nor the Executive, including any agent or attorney of either, has made any representation, guarantee or promise whatsoever not contained in this Agreement to induce the other to execute this Agreement, and neither party is relying on any representations, guarantee, or promise not contained in this Agreement in entering into this Agreement. |
4. | Modifications . There may be no modification of this Agreement except in writing signed by both parties. If any of the provisions of this Agreement are found null, void, or inoperative, for any reason, the remaining provisions will remain in full force and effect. |
5. | Choice of Law . This Agreement and the rights and obligations hereunder shall be governed by, and construed and interpreted in all respects in accordance with, the substantive laws of the State of Tennessee. |
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6. | Disputes . All claims by the Executive for payment under this Agreement shall be directed to and determined by the Board of Directors of the Company and shall be in writing. Any denial by the Board of Directors of a claim for payment under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of the Agreement relied upon. The Board of Directors shall afford a reasonable opportunity for the Executive for a review of the decision denying a claim. Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators award in any court having jurisdiction. The prevailing party in any action or proceeding between the Company and Employee, whether by suit, arbitration, or otherwise, as to the rights or obligations under this Agreement shall be entitled to all costs incurred in connection therewith, including reasonable attorneys fees and expert fees. |
IN WHITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above.
FRANKLIN SYNERGY BANK | EXECUTIVE | |||||||
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Richard E. Herrington | Lee M. Moss | |||||||
Title: Chief Executive Officer |
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EXHIBIT 10.37
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
KEVIN D.
BUSBEY
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the day of , 20 , between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Kevin D. Busbey (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President, Chief Financial Officer of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the Executive Vice President, Chief Financial Officer, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Franklin , Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment . Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
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3. Compensation . The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of ($140,000.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of one hundred forty thousand ($140,000.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
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7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President, Chief Financial Officer . Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation . The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
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10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control.
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) | Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
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(c) In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule.
(d) In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
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16. Entire Agreement; Amendment . This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment . This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||
By: | ||||||
Kevin D. Busbey | Richard E. Herrington | |||||
Its: | Chief Executive Officer |
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EXHIBIT 10.38
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
KEVIN D. BUSBEY
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this day of , 20 , between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Kevin D. Busbey (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
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(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
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(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
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By: |
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Kevin D. Busbey | Richard E. Herrington | |||||||
Its: Chief Executive Officer |
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EXHIBIT 10.39
FRANKLIN SYNERGY BANK
RETENTION BONUS AGREEMENT
This Retention Bonus Agreement (the Agreement), entered into effective January 29, 2014, is by and between Kevin D. Busbey (Executive) and Franklin Synergy Bank (Company), located in Franklin, Tennessee.
WHEREAS, the Company is in the process of closing a merger/acquisition of MidSouth Bank, with a date of , (Closing Date);
WHEREAS, the Company values Executives past contribution;
WHEREAS, the Company will continue to need the services of the Executive in order to maximize Company value for its shareholders now and in the future; and
WHEREAS, in order to incentivize the Executive to continue his/her services to the Company, the Company desires to enter into this Agreement with the Executive providing certain benefits to the Executive if he/she continues in the employ of the Company;
NOW THEREFORE, the Company and the Executive, in exchange for the mutual promises and covenants and other consideration herein, hereby agree as follows:
1. | Retention Bonus . If Executive does not resign and is not terminated for Cause prior to the first, second or third anniversary of the Closing Date, the Company will pay to the Executive a retention bonus as described herein (Retention Bonus). The Company will pay the Retention Bonus in three equal amounts, with $12,000.00 payable on each of the first, second, and third anniversary of the Closing Date, for a total of $36,000.00, provided the Executive is actively employed with the Company on such dates. Twenty percent (20%) of the Retention Bonus will be paid in cash and eighty percent (80%) of the Retention Bonus will be paid as Restricted Stock. |
2. | Section 409A . This arrangement is intended to comply in all respects with Internal Revenue Code Section 409A governing short-term deferrals so that none of the Retention Bonus payments made under this Agreement are determined to provide, or treated as providing, for a deferral of compensation under Code Section 409A. |
3. | Entire Agreement . This Agreement contains the entire agreement and understanding of the Company and Executive concerning the payment of a retention bonus and this Agreement supersedes and replaces all prior negotiations, proposed agreements, agreements or representations whether written or oral concerning the payment of a retention bonus. The parties agree and acknowledge that neither the Company nor the Executive, including any agent or attorney of either, has made any representation, guarantee or promise whatsoever not contained in this Agreement to induce the other to execute this Agreement, and neither party is relying on any representations, guarantee, or promise not contained in this Agreement in entering into this Agreement. |
4. | Modifications . There may be no modification of this Agreement except in writing signed by both parties. If any of the provisions of this Agreement are found null, void, or inoperative, for any reason, the remaining provisions will remain in full force and effect. |
5. | Choice of Law . This Agreement and the rights and obligations hereunder shall be governed by, and construed and interpreted in all respects in accordance with, the substantive laws of the State of Tennessee. |
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6. | Disputes . All claims by the Executive for payment under this Agreement shall be directed to and determined by the Board of Directors of the Company and shall be in writing. Any denial by the Board of Directors of a claim for payment under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of the Agreement relied upon. The Board of Directors shall afford a reasonable opportunity for the Executive for a review of the decision denying a claim. Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators award in any court having jurisdiction. The prevailing party in any action or proceeding between the Company and Employee, whether by suit, arbitration, or otherwise, as to the rights or obligations under this Agreement shall be entitled to all costs incurred in connection therewith, including reasonable attorneys fees and expert fees. |
IN WHITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above.
FRANKLIN SYNERGY BANK | EXECUTIVE | |||
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Richard E. Herrington | Kevin D. Busbey | |||
Title: Chief Executive Officer |
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EXHIBIT 10.40
FRANKLIN SYNERGY BANK
EMPLOYMENT
AGREEMENT
DALLAS G. CAUDLE, JR.
THIS EMPLOYMENT AGREEMENT (the Agreement) is made as of the day of , 20 , between Franklin Synergy Bank, a Tennessee banking corporation (the Bank) and Dallas G. Caudle, Jr. (Executive).
WHEREAS, the Executive is currently serving as the Executive Vice President, Rutherford County Community President of the Bank;
WHEREAS, the Executive and the Bank desire to enter into an Employment Agreement to formalize the terms and conditions of the Executives employment with the Bank, which Employment Agreement supersedes all previous Employment Agreements entered into between the Bank and Executive,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings made herein, the Bank and the Executive, each intending to be legally bound, hereby agree as follows:
1. Position . The Executive shall be employed as the Executive Vice President, Rutherford County Community President of the Bank, and shall perform such duties as may be assigned to the Executive from time to time by the Board of Directors of the Bank or as may be set forth in the bylaws of the Bank (Bylaws), as the same may be amended from time to time. The Executives employment will be on a full time basis at the Banks offices located in Murfreesboro , Tennessee, subject to such travel as may be required from time to time to perform Executives duties. The Executive further agrees to devote his full time and attention to the business of the Bank and to perform such duties as may be required of him to the best his abilities, and will not accept any other employment while employed by the Bank without the prior written consent of the Bank.
2. Term of Employment . Subject to the terms and conditions hereof, the term of this Agreement shall commence on the Effective Date and shall continue for two (2) years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two (2) years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board of Directors provides written notice of non-renewal to Executive; or (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any replacement of this Agreement.
3. Compensation . The Bank shall pay to the Executive compensation for his services during the Term of Employment as follows:
(a) The Executive shall be paid a base salary of ($200,000.00) Dollars per annum. The Executives base salary shall be reviewed at least annually. Such review shall be conducted by the Board of Directors or by the Board Personnel Committee and they may increase, but not decrease salary below the Executives original base salary of two hundred thousand ($200,000.00) Dollars. The salary shall be paid in accordance with the payroll policies of the Bank.
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(b) The Executive shall be entitled to reimbursement for all proper business expenses incurred by him with respect to the business of the Bank, in the same manner and to the same extent as such expenses are reimbursed to other officers of the Bank.
(c) The Executive shall be eligible to receive discretionary annual cash incentive/bonus payments as authorized by the Board of Directors or the Board Personnel Committee. Executive shall also be entitled to participate in equity compensation plans as may be approved by the shareholders of the Bank in such amounts, and pursuant to such terms, as shall be authorized by the Board of Directors in its discretion.
4. Benefits . The Executive shall be entitled to receive benefits, including vacation time and insurance benefits, in accordance with the benefit policies developed for the Bank and approved by the Board of Directors.
5. Disability or Disabled . If, during the Term of Employment, the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Bank, the Bank may terminate the employment of the Executive hereunder upon written notice to the Executive. In such event, the Executive shall not be entitled to any further payments or benefits under this Agreement other than payments under any disability policy which the Bank may obtain for the benefit of its officers generally and salary accruing up to the date of termination.
6. Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean: (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank, its parent, its subsidiaries or its affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
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7. Termination Without Cause . The Board of Directors may, at its discretion, terminate Executives duties and responsibilities as Executive Vice President, Rutherford County Community President. Such action shall require a majority vote of the entire Board of Directors and shall be effective immediately upon delivery to Executive of written notice of this action by the Board of Directors, or at such other time as may be agreed upon by both parties to this Agreement. Except as provided in Section 10 and Section 11 of this Agreement, following such termination of this contract, all rights, obligations and duties of both parties relative to this Agreement shall cease and no benefits shall be payable under this Agreement.
8. Voluntary Resignation . The Executive may resign from his employment with the Bank hereunder at any time during the Term for any reason upon thirty (30) days prior written notice. Except as provided in Section 9, Section 10 and Section 11 of the Agreement, upon resignation the Executive shall not be entitled to any additional compensation for the time after which he ceases to be employed by the Bank, and shall not be entitled to any of the other benefits provided hereunder.
9. Voluntary Resignation with Good Reason . The Executive may resign from his employment with the Bank hereunder with Good Reason. For purposes of this Agreement, a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if the conditions stated in both clauses (x) and (y) are satisfied
(x) a voluntary resignation by the Executive shall be considered a voluntary resignation with Good Reason if any of the following occur without the Executives advance written consent, and the term Good Reason shall mean the occurrence of any of the following without the Executives advance written consent
1) | a material diminution of the Executives base salary, |
2) | a material diminution of the Executives authority, duties, or responsibilities, |
3) | a material diminution in the authority, duties, or responsibilities of the supervisor to whom the Executive is required to report, including a requirement that the Executive report to a corporate officer or employee instead of reporting directly to the board of directors, |
4) | a material change in the geographic location at which the Executive must perform services, or |
5) | any other action or inaction that constitutes a material breach by the Bank of this Agreement. |
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(y) the Executive must give notice to the Bank of the existence of one or more of the conditions described in clause (x) within 90 days after the initial existence of the condition, and the Bank shall have 30 days thereafter to remedy the condition. In addition, the Executives voluntary resignation because of the existence of one or more of the conditions described in clause (x) must occur within eighteen (18) months after the initial existence of the condition.
10. Payment upon Termination Without Cause or Voluntary Resignation with Good Reason . In the event of a Termination Without Cause as defined above in Section 7 or a Voluntary Resignation for Good Reason as defined above in Section 9, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule. In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
11. Change in Control.
(a) Upon the occurrence of a Change in Control (as herein defined), followed at any time during the term of this Agreement by the involuntary termination of Executives employment, other than for Cause as defined in Section 6 hereof, or, as permitted below, upon Executives voluntary termination of employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, Executive shall become entitled to receive the payments provided for under paragraph 11(c) below. Upon the occurrence of a Change in Control, Executive shall have the right to elect to voluntarily terminate his employment within twelve (12) months prior to a Change in Control or twenty four (24) months following a Change in Control, following any demotion, loss of title, office or significant authority, reduction in annual compensation or benefits, or relocation of his principal place of employment by more than thirty (30) miles from its location immediately prior to the Change in Control.
(b) A Change in Control shall mean:
(i) | A reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or |
(ii) |
Individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent |
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Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board. |
(c) In the event the conditions of paragraph 9(a) above are satisfied, Executive shall be entitled to receive payments equal to two (2) times his then current base salary plus two (2) times his three (3) year average cash incentive payments. However, in no event shall any payments provided for hereunder constitute an excess parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended or any successor thereto. In order to avoid such a result, the benefits provided for hereunder will be reduced, if necessary, to an amount which is One ($1.00) Dollar less than an amount equal to three (3) times Executives base amount as determined in accordance with such Section 280G. In addition to the foregoing, Executive shall be entitled to receive from the Bank, or its successor, hospital, health, medical and life insurance on the terms and at the cost to Executive as Executive was receiving such benefits upon the date of his termination. The Banks obligation to continue such insurance benefits will be for a period of two (2) years. Payments made under this Section 10 shall be made monthly in accordance with the Banks normal payroll schedule.
(d) In addition, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
12. Retirement . Upon the Executives retirement, all unvested Stock Option Grants, Restricted Stock Awards or other equity granted to the Executive shall become fully vested as of the date of termination regardless of the vesting schedule associated with such equity grants.
13. Waiver of Breach . The waiver by any party hereto of a breach of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach, nor shall any waiver of any provision of this Agreement in any instance shall be deemed to be a waiver of any other provision in any other instance.
14. Representation by Counsel . The Executive represents and warrants to the Bank that he has been advised to retain legal counsel in connection with the preparation, negotiation and execution of the Agreement.
15. Governing Law, Venue, and Waiver of Right to Jury Trial . This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
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16. Entire Agreement; Amendment . This Agreement sets forth the entire understanding of the parties hereto with respect to its subject matter and supersedes all prior agreements, negotiations and understandings, written or oral, with respect to matters covered hereby. The amendments or termination of this Agreement may be made only in a writing executed by the Bank and the Executives, and no amendment or termination of this Agreement shall be effective unless and until made in such a writing.
17. Assignment . This Agreement is personal to the Executive and the Executive may not assign any of his rights or duties hereunder, but this Agreement shall be enforceable by the Executives legal representatives, executors or administrators. By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
18. Severability . The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
19. Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed by its duly authorized officer, and the Executive has executed this Agreement, as of the day and year first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
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By: |
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Dallas G. Caudle, Jr. | Richard Herrington | |||||||
Its: | Chief Executive Officer |
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EXHIBIT 10.41
CONFIDENTIALITY, NON-COMPETITION AGREEMENT AND
NON-SOLICITATION AGREEMENT
FRANKLIN SYNERGY BANK
C ONFIDENTIALITY , N ON -C OMPETITION A GREEMENT AND N ON -S OLICITATION A GREEMENT
DALLAS G. CAUDLE, JR.
This Confidentiality, Non-Competition, and Non-Solicitation Agreement (this Agreement) is entered into as of this day of , 20 , between Franklin Synergy Bank (the Bank), a Tennessee banking corporation and Dallas G. Caudle, Jr. (Executive).
W HEREAS , Executive is an employee of the Bank, who has been employed to provide guidance, leadership, and direction in the growth, management, and development of the Bank and has learned trade secrets, confidential procedures and information, and technical and sensitive plans of the Bank,
W HEREAS , the Bank desires to restrict, after the Executives Termination of Employment (as defined below) with the Bank, the Executives availability to other banks or entities that compete with the Bank,
N OW T HEREFORE , in consideration of these premises, the mutual promises and undertakings set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Executive and the Bank hereby agree as follows:
1. Administration of this Agreement .
(a) Administrator duties . This Agreement shall be administered by the Banks board of directors or by such committee or person as the board shall appoint (the Administrator). The Executive may not be a member of the Administrator. The Administrator shall have the discretion and authority to (i) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions that may arise, including interpretations of this Agreement.
(a) Agents . In the administration of this Agreement, the Administrator may employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel, who may be counsel to the Bank.
(b) Binding effect of decisions . The decision or action of the Administrator concerning any question arising out of the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement.
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(c) Indemnity of Administrator . The Bank shall indemnify and hold harmless the members of the Administrator against any and all claims, losses, damages, expenses, or liabilities arising from any action or failure to act with respect to this Agreement, except in the case of willful misconduct by the Administrator or any of its members. No individual shall be liable while acting as Administrator for any action or determination made in good faith regarding this Agreement, and any such individual shall be entitled to indemnification and reimbursement in the manner provided in the Banks Charter and Bylaws and under applicable law.
(d) Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require.
(e) Action by the Administrator . In addition to acting at a meeting in accordance with applicable laws, any action of the Administrator concerning this Agreement may be taken by a written instrument signed by the Administrator (including, if the Banks board of directors or a board committee serves as the Administrator, by written consent in accordance with Tennessee law and the Charter and Bylaws of the Bank, and any such action so taken by written consent shall be effective as if it had been taken by a majority of the members at a meeting duly called and held).
2. Definitions
(a) Affiliate shall mean the Bank and any entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the Bank.
(b) Change in Control shall mean: (i) a reorganization, merger, consolidation or sale of all or substantially all of the assets of the Bank, or any similar transaction, in any case in which the shareholders of the Banks parent company (Franklin Financial Network, Inc.) prior to such transaction hold less than a majority of the voting power of the resulting entity; or (ii) individuals who constitute the Incumbent Board (as herein defined) of the Bank cease for any reason to constitute a majority thereof. For these purposes, Incumbent Board means the Board of Directors of the Bank on the date hereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a voting of a majority of the directors comprising the Incumbent Board, or whose nomination for election by members or shareholders was approved by the same nominating committee serving under an Incumbent Board, shall be considered as though he were a member of the Incumbent Board.
(c) Code shall mean the Internal Revenue Code of 1986, as amended, or any successor statute, rule or regulation of similar effect.
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(d) Confidential Information shall mean all business and other information relating to the business of the Bank, including without limitation, technical or nontechnical data, programs, methods, techniques, processes, financial data, financial plans, product plans, and lists of actual or potential customers, which (i) derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Such information and compilations of information shall be contractually subject to protection under this Agreement whether or not such information constitutes a trade secret and is separately protectable at law or in equity as a trade secret. Confidential Information does not include confidential business information, which does not constitute a trade secret under applicable law one year after any expiration or termination of this Agreement.
(e) Customer shall mean any individual, joint venturer, entity of any sort, or other business partner of the Bank with, for, or to whom the Bank has provided financial products or services during the final two years of the Executives employment with the Bank, or any individual, joint venturer, entity of any sort, or business partner whom the Bank has identified as a prospective customer of financial products or services within the final year of the Executives employment with the Bank.
(f) Disability or Disabled means the Executive (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months or (ii) is by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, receiving income replacement benefits for a period of not less than three months under an accident and health plan covering employees of the Bank.
(g) Financial products or services shall mean any product or service that a financial institution or a financial holding company could offer by engaging in any activity that is financial in nature or incidental to such a financial activity under Section 4(k) of the Bank Holding Company Act of 1956 and that is offered by the Bank, or an affiliate, on the date of the Executives Termination of Employment, including but not limited to banking activities and activities that are closely related and a proper incident to banking, or other products or services of the type in which the Executive was involved during the Executives employment with the Bank.
(h) Person shall mean any individual, corporation, limited liability company, bank, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or other entity.
(i) Specified Employee means an employee who at the time of Termination of Employment is a key employee of the Bank, if any stock of the Bank is publicly traded on an established securities market or otherwise. For purposes of this Agreement, an employee is a key employee if the employee meets the requirements of Code Section 416(i)(1)(A)(i), (ii), or (iii) (applied in accordance with the regulations thereunder and disregarding Section 416(i)(5)) at any time during the 12-month period ending on December 31 (the identification period). If the employee is a key employee during an identification period, the employee is treated as a key employee for purposes of this Agreement during the twelve (12) month period that begins on the first day of April following the close of the identification period.
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(j) Termination of Employment with the Bank means that the Executive shall have ceased to be employed by the Bank for reasons other than death, excepting a leave of absence approved by the Bank. Whether a termination of employment has occurred is determined based on whether the facts and circumstances indicate that the Bank and the Executive reasonably anticipated that no further services would be performed after a certain date or that the level of bona fide services the Executive would perform after such date (whether as an employee or as an independent contractor) would permanently decrease to no more than twenty percent (20%) of the average level of bona fide services performed (whether as an employee or an independent contractor) over the immediately preceding twenty-four (24) month period (or the full period of services to the Bank if the Executive has been providing services to the Bank less than twenty-four (24) months).
(k) Termination for Cause . The Bank may terminate the Executives employment for Cause, upon written notice to the Executive which notice shall specify the reason for termination. In the event of termination for Cause, the Executive shall not be entitled to any further payment of benefits under the Agreement other than salary accruing up to the date of termination. For purposes of the Agreement, Cause shall mean; (i) the willful or repeated failure by the Executive to perform his duties hereunder or failure to abide by the policies set forth in the Employee Handbook, after at least one warning in writing from the Bank identifying any such failure occurring not less than forty-five (45) days prior to the date notice of termination is given by the Bank pursuant to this section; (ii) the willful misconduct of the Executive in the performance of his duties hereunder; (iii) conviction of a crime (other than a minor traffic violation); (iv) use of alcohol or other drugs which interferes with the performance by the Executive of Executives duties; (v) excessive absenteeism, other than for illness, after at least one warning in writing from the Bank; (vi) the unauthorized disclosure or use of any confidential information or proprietary data of the Bank or its Affiliates; (vii) the happening of any event or existence of any circumstances which would prevent the Executive from serving as an officer of the Bank under the Tennessee or applicable Federal banking regulations; (viii) Executives conduct that brings public discredit on, or injures the reputation of, Bank, in Banks reasonable opinion.
(l) Voluntary Termination shall mean the termination by Executive of Executives employment, which is not for Cause.
3. Term
The term of this Agreement shall commence upon the date this Agreement is executed by all parties and will continue for two years. The term of this Agreement will automatically renew each day after the Effective Date for one additional day so that the term of the Agreement shall always be two years unless (i) terminated by the Employer and replaced by a mutually agreed upon arrangement; or (ii) the Board provides written notice of non-renewal to Executive; or, (iii) Executive provides written notice of non-renewal to Bank. Each party shall negotiate in good faith the terms and conditions for any renewal of the Term or any Renewal Term of this Agreement.
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4. Covenants Against Competition, Solicitation, or Disclosure of Confidential Information .
(a) Competition . In recognition of the considerations described in this Agreement, the Executive shall not, either separately, jointly, or in association with others, directly or indirectly, as an agent, employee, owner, partner, shareholder, or otherwise, compete with the Bank or establish, engage in, or become interested in any business, trade, or occupation that competes with the Bank in the financial products or services industry in any county in any of the States of the United States in which the Banks business is currently being conducted or is being conducted when the Executives Termination of Employment occurs. The Bank and the Executive acknowledge that during the term of the Executives employment the Executive has acquired special and confidential knowledge regarding the operations of the Bank. Furthermore, although not a term or condition of this Agreement, the Bank and the Executive acknowledge that the Executives services have been used and are being used by the Bank in executive, managerial, and supervisory capacities throughout the areas in which the Bank conducts business. Executive acknowledges that the non-compete restrictions contained herein are reasonable and fair in scope and necessary to protect the legitimate business interests of the Bank.
(b) Solicitation . In recognition of the considerations described in this Agreement, the Executive shall not (i) directly or indirectly solicit or attempt to solicit any customer of the Bank to accept or purchase financial products or services of the same nature, kind or variety currently being provided to the customer by the Bank or being provided to the customer by the Bank when the Executives Termination of Employment occurs, (ii) directly or indirectly influence or attempt to influence any customer, joint venturer, or other business partner of the Bank to alter that person or entitys business relationship with the Bank in any way, and (iii) accept the financial products or services business of any customer or provide financial products or services to any customer on behalf of anyone other than the Bank. In addition, the Executive shall not solicit or attempt to solicit and shall not encourage or induce in any way any employee, joint venturer, or business partner of the Bank to terminate an employment or contractual relationship with the Bank, and shall not hire any person employed by Bank during the two-year period immediately before the Executives Termination of Employment or any person employed by the Bank during the term of this covenant.
(c) Disclosure of Confidential Information . In recognition of the considerations described in this Agreement, the Executive shall not reveal to any person, firm, or corporation any Confidential Information of any nature concerning the Bank or the business of the Bank, or affiliates. The covenant in this Section 4(c) does not prohibit disclosure required by an order of a court having jurisdiction or a subpoena from an appropriate governmental agency or disclosure made by the Executive in the ordinary course of business and within the scope of the Executives authority.
(d) Duration; no impact on existing obligations under law or contract . The covenants in this Section 4 shall apply throughout the twelve (12) month period immediately following the executives Termination of Employment whether or not the Bank has engaged the services of the Executive pursuant to an agreement to provide consulting services upon the Executives Termination of Employment with the Bank. The twelve (12) month durational
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period referenced herein shall be tolled and shall not run during any such time that the Executive is in breach of this Agreement and/or in violation of any of the covenants contained herein, and once tolled hereunder shall not begin to run again until such time as all such breach and/or violations have ceased. The Executive acknowledges and agrees that nothing in this Agreement is intended to or shall have any impact on the Executives obligations as an officer or employee of the Bank to refrain from competing against, soliciting customers, officers, or employees of, or disclosing Confidential Information of the Bank while the Executive is serving as an officer or employee of the Bank or thereafter, whether the Executives obligations arise under applicable law or under an employment agreement or otherwise.
(e) Remedies . The Executive acknowledges and agrees that remedies at law for the Executives breach of the covenants contained herein are inadequate and that for violation of the covenants contained herein, in addition to any and all legal and equitable remedies that may be available, the covenants may be enforced by an injunction in a suit in equity without the necessity of proving actual damage, and that a temporary injunction may be granted immediately upon the commencement of any such suit, and without notice. The parties hereto intend that the covenants contained in this Section 4 shall be deemed to be a series of separate covenants, one for each county of each state in which the Bank does business. If in any judicial proceeding a court refuses to enforce any or all of the separate covenants, the unenforceable covenants shall be deemed eliminated from the provisions hereof for the purposes of that proceeding to the extent necessary to permit the remaining separate covenants to be enforced. Furthermore, if in any judicial proceeding a court refuses to enforce any covenant because of the covenants duration or geographic scope, the covenant shall be construed to have only the maximum duration or geographic scope permitted by law.
(f) Forfeiture of payments under this Agreement . If the Executive breaches any of the covenants in this Section 4, the Executives right to any of the payments specified in Section 5 after the date of the breach shall be forever forfeited and the right of the Executives designated beneficiary or estate to any payments under this Agreement shall likewise be forever forfeited. This forfeiture is in addition to and not instead of any injunctive or other relief that may be available to the Bank. The Executive further acknowledges and agrees that any breach of any of the covenants in this Section 4 shall be deemed a material breach by the Executive of this Agreement.
5. Non-Compete Payment .
(a) Payment . In consideration of the Executives covenant not to compete as described in Section 4 hereto and subject to the limitations outlined in Section 5(c) and Section 22, upon the Executives Termination of Employment for any reason, the Bank shall pay to the Executive an amount equal to the aggregate of one (1) times the annual rate of base salary then being paid to the Executive, plus one (1) times the average of the past three years cash incentive bonus pay, which amount shall be paid in twelve (12) equal monthly payments beginning on the first day of the month following the Executives Termination of Employment.
(b) Potential six-month delay under Section 409A . If, when Termination of Employment occurs, the Executive is a specified employee within the meaning of Section 409A of the Code, and if the non-competition payment under this Section 5 would be considered
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deferred compensation under Section 409A of the Code, and finally if an exemption from the six-month delay requirement of Section 409A(a)(2)(B)(i) of the Code is not available, the Executives non-competition payments for the first six months following Termination of Employment shall be paid to the Executive in a single lump sum on the first day of the seventh month after the month in which the Executives Termination of Employment occurs.
(c) Death, Disability and For Cause . Notwithstanding anything herein to the contrary, no amounts are payable under this Agreement in the event of the Executives Termination of Employment as a result of death, disability or for Cause. Further, all payments under this Agreement shall cease upon Executives death.
6. Claims Procedure .
A person or beneficiary who has not received benefits under this Agreement that he believes should be paid shall make a claim for such benefits by submitting to the Administrator a written claim for the benefits. The claim must state with particularity the determination desired by the claimant. All determinations and decisions made by the Administrator regarding claims for benefits under this Agreement will be final, conclusive and binding on all persons, including the Bank, the Executive his estate and beneficiaries.
7. Return of Records and Property .
Upon the Executives Termination of Employment for any reason, or at any time upon the Banks request, the Executive shall promptly deliver to the Bank: all Bank and Affiliate records and all Bank and Affiliate property in the Executives possession or the Executives control, including without limitation manuals, books, blank forms, documents, letters, memoranda, notes, notebooks, reports, printouts, computer disks, computer tapes, source codes, data, tables or calculations, and all copies thereof; documents that in whole or in part contain any Confidential Information of the Bank or its Affiliates and all copies thereof; and keys, access cards, access codes, passwords, credit cards, personal or laptop computers, telephones, PDAs, smart phones, and other electronic equipment belonging to the Bank or an Affiliate.
8. Remedies .
Executive agrees that if Executive fails to fulfill Executives obligations under this Agreement, including, without limitation, the Non-Competition and Non-Solicitation obligations set forth in paragraph 4, the damages to the Bank or any of its Affiliates would be very difficult or impossible to determine. Therefore, in addition to any other rights or remedies available to the Bank at law, in equity or by statute, Executive hereby consents to the specific enforcement by the Bank of this Agreement through an injunction or restraining order issued by an appropriate court, without the necessity of proving actual damages, and Executive hereby waives as a defense to any equitable action the allegation that the Bank has an adequate remedy at law. The provisions of this paragraph shall not diminish the right of the Bank to claim and recover damages or to obtain any equitable remedy in addition to injunctive relief to which the Bank may otherwise be entitled. The Executive understands and agrees that the Executive will also be responsible for all costs and attorneys fees incurred by the Bank in enforcing any of the provisions of this Agreement including, but not limited to, expert witness fees and deposition costs.
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9. Payments and Funding .
Any payment under this Agreement shall be independent of and in addition to those under any other plan, program, or agreement that may be in effect between the parties hereto or any other compensation payable to the Executive by the Bank.
10. Assignment of Rights; Spendthrift Clause .
None of the Executive, the Executives estate, or the Executives beneficiary shall have any right to sell, assign, transfer, pledge, attach, encumber, or otherwise convey the right to receive any payment hereunder. To the extent permitted by law, benefits payable under this Agreement shall not be subject to the claim of any creditor of the Executive, the Executives estate, or the Executives designated beneficiary or subject to any legal process by any creditor of the Executive, the Executives estate, or the Executives designated beneficiary.
11. Binding Effect .
This Agreement shall bind the Executive, the Bank, and their beneficiaries, survivors, executors, successors and assigns, administrators, and transferees.
12. Successors; Binding Agreement .
By an assumption agreement in form and substance satisfactory to the Executive, the Bank shall require any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Bank to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Bank would be required to perform this Agreement had no succession occurred.
13. Amendment of Agreement .
This Agreement may not be altered or amended except by a written agreement signed by the Bank and by the Executive. However, if the Bank determines to its reasonable satisfaction that an alteration or amendment of this Agreement is necessary or advisable so that the Agreement complies with the Code or any other applicable tax law, then upon written notice to Executive the Bank may unilaterally amend this Agreement in such manner and to such an extent as the Bank reasonably considers necessary or advisable to ensure compliance with the Code or other applicable tax law. Nothing in this Section 13 shall be deemed to limit the Banks right to terminate this Agreement at any time and without stated cause.
14. Interpretation .
Caption headings and subheadings herein are included solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement. Words used in the singular in this Agreement shall include the plural and words used in the masculine shall include the feminine.
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15. Severability .
If any provision of this Agreement is held invalid, such invalidity shall not affect any other provision of this Agreement not held invalid, and each such other provision shall continue in full force and effect to the full extent consistent with law. If any provision of this Agreement is held invalid in part, such invalidity shall not affect the remainder of the provision not held invalid, and the remainder of such provision together with all other provisions of this Agreement shall continue in full force and effect to the full extent consistent with law.
16. Governing Law, Venue, and Waiver of Right to Jury Trial .
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee, except to the extent preempted by the laws of the United States of America. The Executive and the Bank agree that the exclusive venue for resolution of any disputes regarding or arising out of this Agreement or the Executives employment with the Bank shall be the state and federal courts located in Williamson County, Tennessee. The Executive and the Bank further agree to waive any right to a jury trial with respect to any disputes regarding or arising out of this Agreement or the Executives employment with the Bank. The Executive and the Bank each acknowledge and agree that this selection of venue and waiver of the right to a jury trial is knowingly, freely, and voluntarily given, is made after opportunity to consult with counsel of their choosing about this Agreement and its provisions, and is in the best interests of each party hereto.
17. Entire Agreement .
This Agreement constitutes the entire agreement between the Bank and the Executive concerning the subject matter. No rights are granted to the Executive under this Agreement other than those specifically set forth.
18. No Guarantee of Employment .
This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee or interfere with the Executives right to terminate employment at any time.
19. Tax Withholding .
If taxes are required by the Code or other applicable tax law to be withheld by the Bank from payments under this Agreement, the Bank shall withhold any taxes that are required to be withheld.
20. Notices .
All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered by hand or mailed, certified or registered mail, return receipt requested, with postage prepaid, to the following addresses or to such other address as either party may designate by like notice. If to the Bank, notice shall be
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given to the board of directors or to such other or additional person or persons as the Bank shall have designated to the Executive in writing. If to the Executive, notice shall be given to the Executive at the Executives address appearing on the Banks records, or to such other or additional person or persons as the Executive shall have designated to the Bank in writing.
21. Compliance With Code Section 409A .
The Bank and the Executive intend that their exercise of authority or discretion under this Agreement shall comply with Section 409A of the Code. Notwithstanding anything herein to the contrary in this Agreement, to the extent that any benefit under this Agreement that is nonqualified deferred compensation (within the meaning of Section 409A of the Code) is payable upon Executives Termination of Employment, such payment(s) shall be made only upon Executives Separation from Service pursuant to the default definition in Treasury Regulation Section 1.409A-1(h).
22. General Limitations .
(a) Removal . Despite any contrary provision of this Agreement, if the Executive is removed from office or permanently prohibited from participating in the Banks affairs by an order issued under Section 8(e) (4) or (g) (1) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(e) (4) or (g) (1), all obligations of the Bank under this Agreement shall terminate as of the effective date of the order.
(b) Default . Despite any contrary provision of this Agreement, if the Bank is in default or in danger of default, as those terms are defined in of Section 3(x) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(x), all obligations under this Agreement shall terminate.
(c) FDIC Open-Bank Assistance . All obligations under this Agreement shall be terminated, except to the extent determined that continuation of the contract is necessary for the continued operation of the Bank, at the time the Federal Deposit Insurance Corporation enters into an agreement to provide assistance to or on behalf of the Bank under the authority contained in Section 13(c) of the Federal Deposit Insurance Act. 12 U.S.C. 1823(c).
I N W ITNESS W HEREOF , the Executive and a duly authorized officer of the Bank have executed this Non-Competition Agreement as of the date first written above.
EXECUTIVE: | FRANKLIN SYNERGY BANK | |||||||
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By: |
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Dallas G. Caudle, Jr. | Richard E. Herrington | |||||||
Its: Chief Executive Officer |
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EXHIBIT 10.42
FRANKLIN SYNERGY BANK
RETENTION BONUS AGREEMENT
This Retention Bonus Agreement (the Agreement), entered into effective January 29, 2014, is by and between Dallas G. Caudle, Jr. (Executive) and Franklin Synergy Bank (Company), located in Franklin, Tennessee.
WHEREAS, the Company is in the process of closing a merger/acquisition of MidSouth Bank, with a date of , (Closing Date);
WHEREAS, the Company values Executives past contribution;
WHEREAS, the Company will continue to need the services of the Executive in order to maximize Company value for its shareholders now and in the future; and
WHEREAS, in order to incentivize the Executive to continue his/her services to the Company, the Company desires to enter into this Agreement with the Executive providing certain benefits to the Executive if he/she continues in the employ of the Company;
NOW THEREFORE, the Company and the Executive, in exchange for the mutual promises and covenants and other consideration herein, hereby agree as follows:
1. | Retention Bonus . If Executive does not resign and is not terminated for Cause prior to the first, second or third anniversary of the Closing Date, the Company will pay to the Executive a retention bonus as described herein (Retention Bonus). The Company will pay the Retention Bonus in three equal amounts, with $17,845.00 payable on each of the first, second, and third anniversary of the Closing Date, for a total of $53,535.00, provided the Executive is actively employed with the Company on such dates. Twenty percent (20%) of the Retention Bonus will be paid in cash and eighty percent (80%) of the Retention Bonus will be paid as Restricted Stock. |
2. | Section 409A . This arrangement is intended to comply in all respects with Internal Revenue Code Section 409A governing short-term deferrals so that none of the Retention Bonus payments made under this Agreement are determined to provide, or treated as providing, for a deferral of compensation under Code Section 409A. |
3. | Entire Agreement . This Agreement contains the entire agreement and understanding of the Company and Executive concerning the payment of a retention bonus and this Agreement supersedes and replaces all prior negotiations, proposed agreements, agreements or representations whether written or oral concerning the payment of a retention bonus. The parties agree and acknowledge that neither the Company nor the Executive, including any agent or attorney of either, has made any representation, guarantee or promise whatsoever not contained in this Agreement to induce the other to execute this Agreement, and neither party is relying on any representations, guarantee, or promise not contained in this Agreement in entering into this Agreement. |
4. | Modifications . There may be no modification of this Agreement except in writing signed by both parties. If any of the provisions of this Agreement are found null, void, or inoperative, for any reason, the remaining provisions will remain in full force and effect. |
5. | Choice of Law . This Agreement and the rights and obligations hereunder shall be governed by, and construed and interpreted in all respects in accordance with, the substantive laws of the State of Tennessee. |
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6. | Disputes . All claims by the Executive for payment under this Agreement shall be directed to and determined by the Board of Directors of the Company and shall be in writing. Any denial by the Board of Directors of a claim for payment under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of the Agreement relied upon. The Board of Directors shall afford a reasonable opportunity for the Executive for a review of the decision denying a claim. Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators award in any court having jurisdiction. The prevailing party in any action or proceeding between the Company and Employee, whether by suit, arbitration, or otherwise, as to the rights or obligations under this Agreement shall be entitled to all costs incurred in connection therewith, including reasonable attorneys fees and expert fees. |
IN WHITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above.
FRANKLIN SYNERGY BANK | EXECUTIVE | |||
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Richard E. Herrington | Dallas G. Caudle, Jr. | |||
Title: Chief Executive Officer |
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EXHIBIT 10.43
FRANKLIN SYNERGY BANK
RETENTION BONUS AGREEMENT
This Retention Bonus Agreement (the Agreement), entered into effective January 29, 2014, is by and between D. Edwin Jernigan, Jr. (Executive) and Franklin Synergy Bank (Company), located in Franklin, Tennessee.
WHEREAS, the Company is in the process of closing a merger/acquisition of MidSouth Bank, with a date of , (Closing Date);
WHEREAS, the Company values Executives past contribution;
WHEREAS, the Company will continue to need the services of the Executive in order to maximize Company value for its shareholders now and in the future; and
WHEREAS, in order to incentivize the Executive to continue his/her services to the Company, the Company desires to enter into this Agreement with the Executive providing certain benefits to the Executive if he/she continues in the employ of the Company;
NOW THEREFORE, the Company and the Executive, in exchange for the mutual promises and covenants and other consideration herein, hereby agree as follows:
1. | Retention Bonus . If Executive does not resign and is not terminated for Cause prior to the first, second, third, fourth or fifth anniversary of the Closing Date, the Company will pay to the Executive a retention bonus as described herein (Retention Bonus). The Company will pay the Retention Bonus in five equal amounts, with $90,000.00 payable on each of the first, second, third, fourth and fifth anniversary of the Closing Date, for a total of $450,000.00, provided the Executive is actively employed with the Company on such dates. Twenty percent (20%) of the Retention Bonus will be paid in cash and eighty percent (80%) of the Retention Bonus will be paid as Restricted Stock. |
2. | Section 409A . This arrangement is intended to comply in all respects with Internal Revenue Code Section 409A governing short-term deferrals so that none of the Retention Bonus payments made under this Agreement are determined to provide, or treated as providing, for a deferral of compensation under Code Section 409A. |
3. | Entire Agreement . This Agreement contains the entire agreement and understanding of the Company and Executive concerning the payment of a retention bonus and this Agreement supersedes and replaces all prior negotiations, proposed agreements, agreements or representations whether written or oral concerning the payment of a retention bonus. The parties agree and acknowledge that neither the Company nor the Executive, including any agent or attorney of either, has made any representation, guarantee or promise whatsoever not contained in this Agreement to induce the other to execute this Agreement, and neither party is relying on any representations, guarantee, or promise not contained in this Agreement in entering into this Agreement. |
4. | Modifications . There may be no modification of this Agreement except in writing signed by both parties. If any of the provisions of this Agreement are found null, void, or inoperative, for any reason, the remaining provisions will remain in full force and effect. |
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5. | Choice of Law . This Agreement and the rights and obligations hereunder shall be governed by, and construed and interpreted in all respects in accordance with, the substantive laws of the State of Tennessee. |
6. | Disputes . All claims by the Executive for payment under this Agreement shall be directed to and determined by the Board of Directors of the Company and shall be in writing. Any denial by the Board of Directors of a claim for payment under this Agreement shall be delivered to the Executive in writing and shall set forth the specific reasons for the denial and the specific provisions of the Agreement relied upon. The Board of Directors shall afford a reasonable opportunity for the Executive for a review of the decision denying a claim. Any further dispute or controversy arising under or in connection with this Agreement shall be settled exclusively by arbitration in accordance with the rules of the American Arbitration Association then in effect. Judgment may be entered on the arbitrators award in any court having jurisdiction. The prevailing party in any action or proceeding between the Company and Employee, whether by suit, arbitration, or otherwise, as to the rights or obligations under this Agreement shall be entitled to all costs incurred in connection therewith, including reasonable attorneys fees and expert fees. |
IN WHITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first set forth above.
FRANKLIN SYNERGY BANK | EXECUTIVE | |||
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Richard E. Herrington | D. Edwin Jernigan, Jr. | |||
Title: Chief Executive Officer |
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EXHIBIT 10.44
FRANKLIN FINANCIAL NETWORK, INC.
2007 OMNIBUS EQUITY INCENTIVE PLAN
AWARD AGREEMENT FOR INCENTIVE STOCK OPTIONS
THIS INCENTIVE STOCK OPTION AGREEMENT (this Agreement) is made as of the day of , 2014 (the Date of Grant), by and between Franklin Financial Network, Inc., a Tennessee corporation (Corporation) and D. Edwin Jernigan, Jr. (the Participant) pursuant to the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan (the Plan).
WHEREAS, Corporation has adopted its 2007 Omnibus Equity Incentive Plan (the Plan); and
WHEREAS, the committee chosen by Corporation to administer the Plan (the Committee) has determined that Participant is eligible to receive an option to purchase shares of common stock of Corporation (Stock) under an incentive stock option and has determined that it is in the best interest of Corporation to grant the stock option documented herein to Participant.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Grant of Option . Corporation hereby grants to Participant the right to purchase $50,000 of option value (the Option Price), in accordance with the terms of this Agreement and the Plan (the Option). The Committee, exercising good faith, has determined that the Option Price is equal to at least one hundred percent (100%) of the fair market value of a share of Stock on the Date of Grant. The Option is intended by the parties hereto to be, and shall be treated as, an incentive stock option (as such term is defined under section 422 of the Internal Revenue Code of 1986 (the Code)).
2. Termination of Option.
(a) Termination Date . The Option and all rights hereunder with respect thereto, to the extent such rights shall not have been previously exercised or otherwise terminated, shall terminate and become null and void on , 2024 at 5:00 P.M. (the Termination Date).
(b) Termination of Participants Employment . In the event of the termination of Participants employment by Corporation for any reason other than Participants death, disability or retirement, the Option, to the extent not previously exercised, shall terminate and become void on the date occurring three months after Participant ceases to be an employee of Corporation. Provided, however, notwithstanding any other provisions set forth herein or in the Plan, if Participant shall commit any act of malfeasance affecting Corporation or any affiliated corporation or is convicted of a felony or engages in conduct that would warrant Participants discharge for cause as such is determined by the Committee in its sole discretion, any unexercised portion of the Option shall immediately terminate and become void. A transfer of Participants employment between Corporation and any subsidiary of Corporation shall not be deemed to be a termination of Participants employment.
(c) Death, Disability or Retirement . Upon termination of Participants employment by reason of Participants death, the Option may be exercised, to the extent not previously exercised, by Participants estate or any distributee of the Option under Participants will or the applicable laws of descent and distribution until five years from date of death. Upon termination of Participants employment by reason of disability (within the meaning of Section 22(e)(3) of the Code) or retirement, the Option may be exercised, to the extent not previously exercised, until the earlier of the Termination Date or the date occurring one year from the date of termination of Participants employment.
3. Installment Exercise . Subject to such further limitations as are provided herein, the Option shall become vested and exercisable in five (5) installments, Participant having the right hereunder to purchase from Corporation the following number of Option Shares upon exercise of the Option, on and after the following dates, in cumulative fashion:
(a) on and after the first anniversary of the Date of Grant, up to twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares;
(b) on and after the second anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
(c) on and after the third anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
(d) on and after the fourth anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
(e) on and after the fifth anniversary of the Date of Grant, the remaining Option Shares.
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4. Exercise of Option . The Option, or any portion of the Option eligible to be exercised by the Participant and not previously exercised, may be exercised at any time or times prior to the termination of the Option pursuant to the provisions hereof. The Option may be exercised only if compliance with all Federal and state securities laws can be effected and only by (i) Participants completion, execution and delivery to Corporation of a notice of exercise and investment letter in the form attached hereto as Exhibit A , and (ii) Participants payment to Corporation of an amount equal to the sum of the amount obtained by multiplying the Option Price by the number of Option Shares being purchased plus any withholding tax required by law as determined by Corporation. Payment shall be made by check payable to Corporation or such other medium of payment as the Committee shall approve. Upon the exercise of the Option by Participant, or as soon thereafter as is practicable, Corporation shall issue and deliver to Participant a certificate or certificates evidencing such number of Option Shares as Participant has so elected to purchase. Such certificate or certificates shall be registered in the name of Participant and shall bear any legend required by any Federal or state securities law or agreement as Corporation shall determine.
5. Transferability of Option . The Option may not be transferred, assigned, pledged or hypothecated (whether by operation of law or otherwise), except that the Option may be transferred upon the death of Participant as provided by Participants Will or the applicable laws of descent and distribution. The Option shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option, or levy of attachment or similar process upon the Option not specifically permitted herein shall be null and void and without effect. Any permitted transferee will be entitled to all of the rights of Participant with respect to the assigned portion of the Option, and such portion of the Option will continue to be subject to all of the then existing terms, conditions and restrictions applicable to the Option, as set forth herein and in the Plan.
6. Adjustments . In the event of the declaration of any stock dividend on the Stock or in the event of any reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of Stock, or like adjustment, the number of shares of Stock and the class of shares of Stock available pursuant to the Option, and the Option Price, shall be adjusted proportionately as determined by the Committee, whose determination shall be conclusive. Notwithstanding the foregoing, in the event of such a reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of stock, or like adjustment which results in substantially all the shares of the Stock of Corporation being exchanged for, or converted into cash or other property, the Committee or Corporation shall have the right to terminate the Option as of the date of the exchange or conversion in which case the Option shall convert into the right to receive such cash or property net of the Option Price of the Options.
7. Termination, Suspension or Amendment of Option . The Committee or Corporation may, at any time, terminate, suspend or amend the Plan or this Agreement.
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8. Registration of Underlying Securities . Notwithstanding the foregoing, if the Company determines that issuance of Shares should be delayed pending registration under federal or state securities laws, the receipt of an opinion of counsel satisfactory to the Company that an appropriate exemption from such registration is available, the listing or inclusion of the Shares on any securities exchange or an automated quotation system, or the consent or approval of any governmental regulatory body whose consent or approval is necessary in connection with the issuance of such Shares, the Company may defer exercise of any Option granted hereunder until any of the events described in this sentence has occurred. Notwithstanding anything herein to the contrary, the Company shall be under no obligation to issue any Shares to the extent the Committee determines that such issuance of Shares would be in violation of any applicable state or federal law.
9. Participants Rights . The granting of the Option shall impose no obligation upon Participant to exercise such Option. Participant shall have no equity interest in Corporation, nor shall Participant have any voting, dividend, liquidation or dissolution rights with respect to any capital stock of Corporation solely by reason of having the Option or having executed this Agreement. Upon the issuance and delivery of a certificate for Option Shares after exercise of the Option, Participant shall have the rights of a shareholder with respect to such Option Shares and to receive all dividends or other distributions paid or made with respect thereto. Nothing in this Agreement or the Plan shall confer upon Participant the right to continue in the employ of Corporation or affect any right which Corporation may have to terminate such employment at any time.
10. Elimination of Fractional Shares . If this Agreement requires a computation of the number of shares of Stock subject to the Option, and the number so computed is not a whole number of shares of Stock, such number of shares of Stock shall be rounded down to the next whole number.
11. Shareholders Agreement . Participant agrees to execute any Shareholders Agreement which all other shareholders of Corporation are subject prior to delivery of any Stock upon the exercise of the Option. All Stock delivered to Participant pursuant to the exercise of the Option shall be subject to any Shareholders Agreement previously entered into by Participant relating to the Stock.
12. Incorporation of Plan by Reference . The Option is granted pursuant to the terms of the Plan, a copy of which is attached hereto as Exhibit B and the terms of which are incorporated herein by reference. The Option shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretations and determinations shall be conclusive and binding on the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder. The provisions of the Plan shall control in the event of any inconsistencies between this Agreement and the Plan.
13. Entire Agreement . This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties and representations between the parties hereto with respect to the Option and the Shares. This Agreement is an integration of any and all prior agreements or understandings, oral or written, with respect to the Option and the Shares.
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14. Notices . Any and all notices provided for herein shall be sufficient if in writing, and sent by hand delivery or by certified or registered mail (return receipt requested and first class postage prepaid), in the case of Corporation, to its principal office, and, in the case of Participant, to Participants address as shown on Corporations records.
15. Governing Law . This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee.
16. Modifications . Except as otherwise provided herein, no change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto.
17. Successors . This Agreement shall be binding on all permitted successors and assigns of Participant including any estate, executors or administrators, trustees, or personal or legal representatives, and, in any such event all references herein to Participant shall, to the extent applicable, be deemed to refer to and include such estate, executors or administrators, trustees or personal or legal representatives, as the case may be.
IN WITNESS WHEREOF, Corporation and Participant have executed this Agreement as of the day and year first above written.
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: | Richard E. Herrington | |
Title: | Chief Executive Officer | |
PARTICIPANT: | ||
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Signature of Participant | ||
D. Edwin Jernigan, Jr. |
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EXHIBIT A
NOTICE AND REQUEST OF EXERCISE
OF OPTION TO PURCHASE
SHARES OF STOCK
OF FRANKLIN FINANCIAL NETWORK, INC.
The undersigned Participant in the 2007 Omnibus Equity Incentive Plan (the Plan) of Franklin Financial Network, Inc., a Tennessee corporation (Corporation), does by this notice request that Corporation issue to the undersigned that number of shares of Stock specified below (the Shares) at the price per Share specified below pursuant to the exercise of Participants Option under the Plan and the Incentive Stock Option Agreement (the Agreement) between the undersigned and Corporation. Simultaneously herewith, the undersigned delivers to Corporation the purchase price for the Shares [i.e., that amount which is obtained by multiplying the number of the Shares by the price specified], by good check, in accordance with the Agreement.
The undersigned hereby represents and warrants that the undersigned has read and understands the Plan and the Agreement and the terms and conditions set forth therein under which the Shares are acquired, shall be held and may be disposed, and hereby ratifies and confirms such terms and conditions. The undersigned hereby represents and warrants that the undersigned is acquiring the Shares for the undersigneds own account (and not on behalf of any other persons) and without any present view to making a public offering or distribution of same and without any present intention of selling or otherwise transferring same at any particular time or at any particular price or upon the occurrence of any particular event or circumstances (except as set forth in the Plan and the Agreement).
The undersigned acknowledges and understands that in connection with the acquisition of the Shares by the undersigned:
1. Corporation has informed the undersigned that the Shares are not registered under the Securities Act of 1933, as amended (the Act), or any applicable state Blue Sky law or laws and that the Shares may not be transferred or otherwise disposed of unless the Shares are subsequently registered under the Act and the applicable state Blue Sky law or laws or an exemption from such registration requirements is made available.
2. The undersigned has been informed that a legend referring to the restrictions indicated herein on transferability and sale will be placed upon the certificate(s) evidencing the Shares, in addition to the legend referred to in the Agreement.
3. The undersigned has received all information requested or otherwise deemed necessary by the undersigned to make an informed decision as to the investment in Corporation, and has had the opportunity to ask questions of and receive answers from officers of Corporation.
4. The undersigned acknowledges that the issuance of the Shares is subject to the execution by the undersigned of a Shareholders Agreement if required by Corporation.
If the undersigned is required to file a Form 144 with the Securities and Exchange Commission in connection with sales of the Shares pursuant to Rule 144 under the Act, the undersigned will mail a copy of such Form to Corporation at the same time and each time the undersigned mails a copy to the Securities and Exchange Commission.
Very truly yours, | ||||||||
A. | Date of Grant of Incentive Stock | |||||||
Option: |
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Signature | ||||||||
B. | Number of Shares covered | |||||||
by Agreement: |
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Printed Name of Participant | ||||||||
C. | Number of Shares of | |||||||
Stock which may | RESIDENCE: | |||||||
be purchased at this | ||||||||
time: |
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Street | ||||||||
D. | Number of Shares of | |||||||
Stock to be |
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actually purchased at this | City, State, Zip Code | |||||||
time: | Dated: , | |||||||
E. | Option Price per Share: | |||||||
$ | ||||||||
F. |
Aggregate price to be paid for Shares actually purchased (D multiplied by E): $ |
ACCEPTED: | ||
FRANKLIN FINANCIAL NETWORK, INC. | ||
By: |
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Its: |
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2
Exhibit 10.45
FRANKLIN FINANCIAL NETWORK, INC.
2007 OMNIBUS EQUITY INCENTIVE PLAN
(formerly the 2007 Qualified-Nonqualified Stock Option Plan)
COMES NOW, Franklin Financial Network, Inc., a Tennessee Corporation (the Corporation), this 23rd day of April , 2013, to amend and restate the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan (formerly known as the Franklin Financial Network, Inc. 2007 Qualified-Nonqualified Stock Option Plan) (the Plan) to be effective June 1, 2012
WHEREAS, the Corporation previously established the Franklin Financial Network, Inc. 2007 Qualified-Nonqualified Stock Option Plan which awarded qualified and nonqualified stock options to key employees, directors and consultants in order to advance the interests of the Corporation and its subsidiaries, including Franklin Synergy Bank and Banc Compliance Group, Inc., by stimulating the efforts of key employees, directors and consultants, increasing their desire to continue in their employment with or services to the Corporation and its subsidiaries, assisting the Corporation and its subsidiaries in competing effectively with other enterprises for the services of its incorporators, new employees, directors, and others necessary for the continued improvement of operations, and attracting and retaining the best possible personnel for service as employees, officers and directors of Corporation and its subsidiaries;
WHEREAS, the Corporation desires to amend and restate the Plan (i) to offer additional forms of equity compensation; (ii) to change the Plans name to the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan to reflect the increased variety of permissible awards; (iii) to increase the number of authorized shares to 1,500,000; and (iv) to update the document for applicable changes in the law;
NOW, THEREFORE, the Corporation hereby amends and restates the Plan, as follows:
1. PURPOSE.
The purpose of the Plan is to promote the interests of the Corporation and its stockholders by (i) attracting and retaining key officers, employees, and directors of, and consultants to, the Corporation and its Subsidiaries and Affiliates; (ii) motivating such individuals by means of performance-related incentives to achieve long-range performance goals; (iii) enabling such individuals to participate in the long-term growth and financial success of the Corporation; (iv) encouraging ownership of stock in the Corporation by such individuals; and (v) linking their compensation to the long-term interests of the Corporation and its stockholders. Toward this objective, the Committee may grant stock options, SAR, Stock Awards, cash bonuses and other incentive awards to Employees of the Corporation and its Subsidiaries and Affiliates on the terms and subject to the conditions set forth in the Plan. In addition, this Plan is intended to enable the Corporation to effectively attract, retain and reward Outside Directors by providing for grants of Outside Director Awards to Outside Directors. No Award under this Plan (or modification thereof) shall provide for deferral of compensation that does not comply with Section 409A of the Code unless the Committee, at the time of grant, specifically provides that the Award is not intended to comply with Section 409A of the Code. Notwithstanding any provision of this Plan to the contrary, if one or more of the payments or benefits received or to be received by a Participant pursuant to an Award would cause the Participant to incur any additional tax or interest under Section 409A of the Code, the Committee may reform such provision to maintain to the maximum extent practicable the original intent of the applicable provision without violating the provisions of Section 409A of the Code.
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2. DEFINITIONS.
2.1 Affiliate means any entity (other than the Corporation and any Subsidiary) that is designated by the Board as a participating employer under the Plan, provided that the Corporation directly or indirectly owns at least 20% of the combined voting power of all classes of stock of that entity or at least 20% of the ownership interests in that entity.
2.2 Award means any form of Option, SAR, Stock Award, cash bonus or other incentive award granted under the Plan, whether singly, in combination, or in tandem, to a Participant by the Committee pursuant to terms, conditions, restrictions and limitations, if any, as the Committee may establish by the Award Notice or otherwise.
2.3 Award Notice means a written notice from the Corporation to a Participant that establishes the terms, conditions, restrictions, and limitations applicable to an Award in addition to those established by the Plan and by the Committees exercise of its administrative powers. In the event of a conflict between the terms of the Plan and any Award Notice, the terms of the Plan shall prevail. The Committee shall, subject to applicable law, determine the date an Award is deemed to be granted. The Committee or, except to the extent prohibited under applicable law, its delegate(s) may establish the terms of agreements or other documents evidencing Awards under this Plan and may, but need not, require as a condition to any such agreements or documents effectiveness that such agreement or document be executed by the Participant, including by electronic signature or other electronic indication of acceptance, and that such Participant agree to such further terms and conditions as specified in such agreement or document.
2.4 Board means the Board of Directors of the Corporation.
2.5 Cause means the engaging by a Participant in illegal conduct that, in the sole discretion of the Committee, is materially and demonstrably injurious to the Corporation unless otherwise defined in an agreement between Participant and the Corporation.
2.6 Change In Control means the happening of any of the following:
a. The Corporation has actual knowledge that any person or entity other than the Corporation, a subsidiary of the Corporation, or any employee benefit plan sponsored by the Corporation or subsidiary has acquired the beneficial ownership (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of 25% or more of the then outstanding Stock;
b. A tender offer is made to acquire securities of the Corporation entitling the holders thereof to 25% or more of the voting power to elect directors of the Corporation;
c. A solicitation subject to Rule 14a-l1 under the Exchange Act (or any successor Rule) relating to the election or removal of 50% or more of the members of the Board shall be made by any person or entity other than the Corporation;
d. Individuals who constitute the Board immediately prior to any meeting of shareholders (the Incumbent Board) have ceased for any reason to constitute at least a majority thereof;
e. The shareholders of the Corporation shall approve a merger, consolidation, share exchange, division or other reorganization of the Corporation as a result of which the shareholders of the Corporation immediately prior to such transaction shall not hold, directly or indirectly, immediately following such transaction 51% or more of the voting power to elect directors of (i) the surviving or resulting corporation in the case of a merger or consolidation, (ii) the acquiring corporation, in the case of a share exchange, or (iii) each surviving, resulting or acquiring corporation which, immediately following such transaction, in the case of a division, holds more than 15% of the consolidated assets of the Corporation immediately preceding such transaction; or
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f. The shareholders of the Corporation shall approve a complete liquidation and dissolution of the Corporation or the sale or other disposition of all or substantially all of the assets of the Corporation other than to a wholly-owned subsidiary of the Corporation.
Notwithstanding the occurrence of any of the foregoing, the Board may determine, if it deems it to be in the best interest of the Corporation and consistent with a good faith interpretation of this Plan, that an event or events otherwise constituting a Change of Control shall not be so considered. Such determination shall be effective if it is made by the Board prior to the occurrence of an event that otherwise would be or probably will lead to a Change in Control or after such event if made by the Board a majority of which is composed of all directors who were members of the Board immediately prior to the event that otherwise would be or probably will lead to a Change in Control. Upon such determination, such event or events shall not be deemed to be a Change in Control for any purposes under this Plan.
2.7 Change In Control Price means the highest closing price per share paid for the purchase of stock in a national securities market during the ninety day period preceding the date the Change in Control occurs, or of no such market exists, the Fair Market Value.
2.8 Code means the Internal Revenue Code of 1986, as amended from time to time.
2.9 Committee means the Compensation Committee of the Board, or any other committee designated by the Board, authorized to administer the Plan under Section 3 of this Plan. The Committee shall consist of not less than 2 members who shall be appointed by, and shall serve at the pleasure of, the Board. The directors appointed to serve on the Committee shall be: (i) independent within the meaning of the listing standards of any securities exchange or automated quotation system upon which the Common Stock is listed or quoted; (ii) non-employee directors (within the meaning of Rule 16b-3(b)(3) under the Exchange Act); and (iii) outside directors (within the meaning of Code Section 162(m) and its related regulations). However, the mere fact that a Committee member fails to qualify under any of the foregoing requirements shall not invalidate any Award made by the Committee if the Award is otherwise validly made under the Plan.
2.10 Common Stock means the $0.001 par value common stock of the Corporation,
2.11 Corporation means Franklin Financial Network, Inc. or any successor.
2.12 Consultant shall mean any consultant to the Corporation or its Subsidiaries or Affiliates.
2.13 Covered Employee means an individual who is, with respect to the Corporation, an individual defined in Code Section 162(m)(3).
2.13 Director means an individual who is a member of the Board.
2.14 Disability means an individual: (i) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months; or (ii) is, by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees or directors of the Corporation. Medical determination of Disability may be made by either the Social Security Administration or by the provider of an accident or health plan covering Employees or Directors of the Corporation provided that the definition of disability applied under such disability insurance program complies with the requirements of the preceding sentence. Upon the request of the plan administrator, the Employee must submit proof to the plan administrator of the Social Security Administrations or the providers determination.
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2.15 Effective Date is defined in Section 6.
2.16 Employee means an employee or prospective employee of the Corporation, a Subsidiary or an Affiliate.
2.17 Exchange Act means the Securities and Exchange Act of 1934, as amended from time to time.
2.18 Exercise Price means the purchase price payable to purchase one Share upon the exercise of an Option or the price by which the value of a SAR shall be determined upon exercise, pursuant to Section 2.30.
2.19 Fair Market Value means the closing price of the shares of Stock on a national securities exchange on which it is principally traded on the day on which such value is to be determined or, if no shares were traded on such day, on the next preceding day on which shares of Stock were traded, as reported by the National Quotation Bureau, Inc. or other national quotation service. If the shares are not traded on a national securities exchange but are traded in the over-the-counter market, Fair Market Value of Stock means the closing asked price of the shares in the over-the-counter market on the day on which such value is to be determined or, if such asked price is not available, the last sales price on such day or, if no shares of Stock were traded on such day, on the next preceding day on which shares of Stock were traded, as reported by the National Association of Securities Dealers Automated Quotation System (NASDAQ) or other national quotation service. If the Stock is traded neither on a national securities exchange nor in the over-the-counter market, the Fair Market Value of Stock shall be determined based upon such factors as the Board or Committee, as applicable, shall reasonably deem appropriate, including without limitation prices or values at which the Stock has most recently been issued to third parties or redeemed or purchased from shareholders, and which shall be in accordance with Treas. Reg. Section 1.409A-l(b)(5)(iv).
2.20 Immediate Family means any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and includes adoptive relationships.
2.21 Incentive Stock Option means an option to purchase Common Stock from the Corporation that is granted under Section 8 of the Plan and that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto. To the extent the aggregate Fair Market Value (determined at the time the Incentive Stock Option is granted) of the Common Stock with respect to which all Incentive Stock Options are exercisable for the first time by an Employee during any calendar year (under all plans described in subsection (d) of Section 422 of the Code of the Employees employer corporation and its parent and Subsidiaries) exceeds $100,000, such Options shall be treated as Non-Qualified Stock Options.
2.22 Non-Qualified Stock Option shall mean an option to purchase Common Stock from the Corporation that is granted under Section 8 or 24 of the Plan and is not intended to be an Incentive Stock Option.
2.23 Option means an Incentive Stock Option or a Non-Qualified Stock Option.
2.24 Outside Director means a member of the Board who is not an officer or employee of the Corporation or any Subsidiary or Affiliate of the Corporation.
2.25 Outside Director Award means either a Director Option or a Director Stock Award or combination thereof awarded to an Outside Director under Section 24.
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2.26 Participant means any individual to whom an Award has been granted by the Committee under this Plan.
2.27 Qualified Performance-Based Award means (i) any Option or SAR granted under the Plan, or (ii) any other Award that is intended to qualify for the Section 162(m) Exemption and is made subject to performance goals based on Qualified Performance Measures as set forth in Section 12.
2.28 Qualified Performance Measures means 1 or more of the performance measures listed in Section 12.2 upon which performance goals for certain Qualified Performance-Based Awards may be established by the Committee.
2.29 Restricted Stock means a share of Common Stock subject to restrictions, as the Committee may determine in accordance with Plan Section 10.
2.30 SAR is an Award that shall entitle the recipient to receive, with respect to each share of Common Stock encompassed by the exercise of the SAR, a payment equal to the excess of the Fair Market Value on the date of exercise over the Fair Market Value on the date of grant.
2.31 Section 162(m) means Section 162(m) of the Code and the regulations promulgated thereunder and any successor provision thereto as in effect from time to time.
2.32 Section 162(m) Cash Maximum means $5,000,000.
2.33 Section 162(m) Exemption means the exemption from the limitation on deductibility imposed by Section 162(m) that is set forth in Section 162(m)(4)(C) of the Code or any successor provision thereto.
2.34 Section 16 means Section 16 of the Exchange Act and the rules promulgated thereunder and any successor provision thereto as in effect from time to time.
2.35 Section 16 Insider means a Participant who is subject to the reporting requirements of Section 16 as a result of the Participants position with the Corporation.
2.36 Stock Award means an Award granted pursuant to Section 10 in the form of shares of Common Stock or restricted shares of Common Stock.
2.37 Subsidiary means a corporation or other business entity in which the Corporation directly or indirectly has an ownership interest of 50% or more, which shall include Franklin Synergy Bank and Banc Compliance Group, Inc.
3. ADMINISTRATION.
The Plan shall be administered by the Committee. The Committee shall have the discretionary authority to: (a) interpret the Plan; (b) establish any rules and regulations it deems necessary for the proper operation and administration of the Plan; (c) select persons to become Participants and receive Awards under the Plan; (d) determine the form of an Award, whether an Option, SAR, Stock Award, cash bonus, or other incentive award established by the Committee, the number of shares subject to the Award, all the terms, conditions, restrictions and limitations, if any, of an Award, including the time and conditions of exercise or vesting, and the terms of any Award Notice; (e) determine whether Awards should be granted singly, in combination or in tandem; (f) grant waivers of Plan terms, conditions, restrictions and limitations; (g) accelerate the vesting, exercise or payment of an Award or the performance period of an Award in the event of a Participants termination of employment or when that action or actions would be in the best interests of the Corporation; (h) establish such other types of Awards, besides those specifically enumerated in Section 2.2, which the Committee determines
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are consistent with the Plans purpose; and (i) take all other action it deems necessary or advisable for the proper operation or administration of the Plan. Subject to Section 21, the Committee also shall have the authority to grant Awards in replacement of Awards previously granted under the Plan or any other executive compensation plan of the Corporation or a Subsidiary. All determinations of the Committee shall be made by a majority of its members, and its determinations shall be final, binding and conclusive on all persons, including the Corporation and Participants.
The Committee, in its discretion, may delegate its authority and duties under the Plan to the Chief Executive Officer or to other senior officers of the Corporation under conditions and limitations the Committee may establish; however, only the Committee may select, grant, and establish the terms of Awards to Section 16 Insiders or Covered Employees.
4. ELIGIBILITY .
Any Employee, Director or Consultant shall be eligible to be designated a Participant; provided, however, that Non-Employee Directors shall only be eligible to receive Awards granted consistent with Section 24.
5. NUMBER OF SHARES AVAILABLE .
Subject to adjustment as provided in Section 16 of the Plan, the maximum number of shares of Common Stock that shall be available for grant of Awards under the Plan (including incentive stock options) during its term shall not exceed 1,500,000 shares. Any shares of Common Stock related to Awards that are settled in cash in lieu of Common Stock shall be available again for grant under the Plan. Similarly, any shares of Common Stock related to Awards that terminate by expiration, forfeiture, cancellation or otherwise without the issuance of the related shares or are exchanged with the Committees permission for Awards not involving Common Stock, shall be available again for grant under the Plan. Further, any shares of Common Stock that are used by a Participant for the full or partial payment to the Corporation of the purchase price of Common Stock upon exercise of a stock option, or for withholding taxes due as a result of that exercise, shall again be available for Awards under the Plan. Notwithstanding any provision in the Plan to the contrary, and subject to adjustment as provided in Section 16 hereof, no Participant may receive Options, SARs, or Stock Awards under the Plan during any one calendar year under the Plan in any calendar year that, taken together, relate to more than 200,000 shares of Common Stock. For purposes of this limitation, forfeited, canceled or repriced shares granted to a Participant in any given calendar year shall continue to be counted against the maximum number of shares that may be granted to that Participant in that calendar year. The shares of Common Stock available for issuance under the Plan may be authorized and unissued shares.
6. EFFECTIVE DATE; TERM .
The Plan was originally effective April 9, 2007 (Effective Date), the date on which the Board of the Corporation approved the Plan, and was properly approved of by stockholders within the subsequent twelve-month period. This amendment and restatement of the Plan shall effective June 1, 2012, subject to the approval of at least a majority vote of stockholders voting in person or by proxy at a duly held stockholders meeting, or if the provisions of the corporate charter, by-laws or applicable state law prescribes a greater degree of stockholder approval for this action, the approval by the holders of that percentage, at a duly held meeting of stockholders within one year following the effective date. No Options intended to be Incentive Stock Options may be granted after the tenth anniversary of the original Effective Date of the Plan. This Plan shall remain in effect until terminated by action of the Board.
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7. PARTICIPATION .
The Committee shall select, from time to time, Participants from those Employees and Consultants who, in the opinion of the Committee, can further the Plans purposes. Once a Participant is selected, the Committee shall determine the type or types of Awards to be made to the Participant and shall establish in the related Award Notices the terms, conditions, restrictions and limitations, if any, applicable to the Awards in addition to those set forth in the Plan and the administrative rules and regulations issued by the Committee.
8. STOCK OPTIONS .
8.1 Grants . Awards may be granted in the form of Options. Options may be Incentive Stock Options, other tax-qualified stock options, or Non-Qualified Stock Options, or a combination of any of those.
8.2 Terms and Conditions of Options . An Option shall be exercisable in whole or in such installments and at the times determined by the Committee, The Committee also shall determine the performance or other conditions, if any, which must be satisfied before all or part of an Option may be exercised. The price at which Common Stock may be purchased upon exercise of a stock option shall be established by the Committee, but such price shall not be less than 110% of the Fair Market Value of the Common Stock on the date the Option is granted in the case of Incentive Stock Options when the Employee to whom the option is to be granted owns stock possessing more than 10% of the total combined voting power of all classes of stock of the Corporation or of any of its Subsidiaries (a Ten Percent Owner), and in the case of all Options other than Incentive Stock Options, not less than 100% of the Fair Market Value of the Common Stock on the date the Option is granted. Each Option shall expire not later than 10 years (or, in the case of an Incentive Stock Option granted to a Ten Percent Owner, not later than 5 years) from its date of grant.
8.3 Restrictions Relating to Incentive Stock Options . Incentive Stock Options shall, in addition to being subject to all applicable terms, conditions, restrictions and limitations established by the Committee, comply with Section 422 of the Code. Accordingly, Incentive Stock Options may only be granted to Employees who are employees of the Corporation or a Subsidiary, and the aggregate market value (determined at the time the option was granted) of the Common Stock with respect to which Incentive Stock Options are exercisable for the first time by a Participant during any calendar year (under the Plan or any other plan of the Corporation or any of its Subsidiaries) shall not exceed $100,000 (or other limit required by the Code). Except with respect to Ten Percent Owners, each Incentive Stock Option shall expire not later than 10 years from its date of grant. No Incentive Stock Option may be exercisable more than three (3) months after a Participant ceases to be an Employee.
8.4 Additional Terms and Conditions . The Committee may, by way of the Award Notice or otherwise, establish other terms, conditions, restrictions and limitations, if any, on any Option, provided they are not inconsistent with the Plan. Without limiting the generality of the foregoing, Options may provide for the automatic granting of new options (reload options) at the time of exercise.
8.5 Exercise . The Committee shall determine the methods by which the Exercise Price of an Option may be paid, the form of payment, including, without limitation, cash, shares of Common Stock, or other property (including cashless exercise arrangements, so long as they do not in any way conflict with the requirements of applicable law), and the methods by which shares of Common Stock shall be delivered or deemed to be delivered by Participants. If, however, shares of Common Stock are used to pay the Exercise Price of an Option, those shares must have been held by the Participant for at least 6 months (or any shorter or longer period necessary to avoid a charge to the Corporations earnings for financial reporting purposes).
9. STOCK APPRECIATION RIGHTS .
9.1 Grants . Awards may be granted in the form of SARs. The SAR may be granted in tandem with all or a portion of a related Option under the Plan (Tandem SARs), or may be granted separately (Freestanding SARs). A Tandem SAR may be granted either at the time of the grant of the related Option or at any time thereafter during the term of the Option. In the case of SARs granted in tandem with Options granted prior to the grant of the SARs, the appreciation in value is the difference between the option price of the related stock option and the Fair Market Value of the Common Stock on the date of exercise.
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9.2 Terms and Conditions of Tandem SARs . A Tandem SAR shall be exercisable to the extent, and only to the extent, that the related Option is exercisable, and the exercise price of that SAR (the base from which the value of the SAR is measured at its exercise) shall be the Exercise Price under the related Option. If a related Option is exercised as to some or all of the shares of Common Stock covered by the Award, the related Tandem SAR, if any, shall be canceled automatically to the extent of the number of shares of Common Stock covered by the Option exercise. Upon exercise of a Tandem SAR as to some or all of the shares of Common Stock covered by the Award, the related Option shall be canceled automatically to the extent of the number of shares of Common Stock covered by the exercise.
9.3 Terms and Conditions of Freestanding SARs . Freestanding SARs shall be exercisable in whole or in the installments and at the times determined by the Committee. Freestanding SARs shall have a term specified by the Committee, in no event to exceed 10 years. The Exercise Price of a Freestanding SAR shall also be determined by the Committee; however, that price shall not be less than 100% of the Fair Market Value on the date of grant of the Freestanding SAR of the number of shares of Common Stock to which the Freestanding SAR relates. The Committee also shall determine the Qualified Performance Measures or other conditions, if any, that must be satisfied before all or part of a Freestanding SAR may be exercised.
9.4 Deemed Exercise . The Committee may provide that an SAR shall be deemed to be exercised at the close of business on the scheduled expiration date of the affected SAR if at that time the SAR by its terms remains exercisable and, if so exercised, would result in a payment to the holder of the SAR.
9.5 Additional Terms and Conditions . The Committee may, by way of the Award Notice or otherwise, determine such other terms, conditions, restrictions and limitations, if any, of any SAR Award, provided they are not inconsistent with the Plan.
10. | RESTRICTED STOCK AWARDS . |
10.1 Grants . Awards may be granted in the form Restricted Stock. Restricted Stock Awards shall be awarded in such numbers and at such times during the term of the Plan as the Committee shall determine and shall be made in actual shares of Common Stock.
10.2 Award Restrictions . Restricted Stock shall be subject to terms, conditions, restrictions, and limitations, if any, the Committee deems appropriate including, without limitation, restrictions on transferability and continued employment of the Participant. The Committee also shall determine the Qualified Performance Measures or other conditions, if any, that must be satisfied before all or part of the applicable restrictions lapse. The Committee may, at its discretion, waive all or any part of the restrictions applicable to any or all outstanding Restricted Stock Awards.
10.3 Rights as Shareholder . During the period in which any restricted shares of Common Stock are subject to restrictions imposed pursuant to Section 10.2, the Participant to whom restricted shares have been awarded shall generally have the rights and privileges of a stockholder as to such Common Stock,, including the right to receive dividends and the right to vote such shares, subject to the following restrictions: (i) the Participant shall not be entitled to delivery of the stock certificate until the expiration of the restricted period and the fulfillment of any other restrictive conditions set forth in the Award Notice with respect to such Common Stock; (ii) none of the Common Stock represented by the Award may be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered or disposed of during such restricted period or until after the fulfillment of any such other restrictive conditions; and (iii) except as otherwise determined by the Committee at or after grant, all of the shares of Common Stock subject to the Award shall be forfeited and all rights of the Participant to such Common Stock shall terminate, without further obligation on the part of the Corporation, unless the Participant remains in the continuous employment of the Corporation for the entire restricted period in relation to which such shares of Common Stock were granted and unless any other restrictive conditions relating to the restricted Share Award are met. Unless otherwise provided in the applicable Award Notice, any shares of Common Stock, any other securities of the Corporation and any other property (except for cash dividends)
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distributed with respect to the Common Stock subject to restricted Stock Awards shall be subject to the same restrictions, terms and conditions as such Restricted Stock Award including the right vote such Common Stock. Cash dividends with respect to the Common Stock subject to a Restricted Stock Award shall be currently paid to the Participant.
10.4 Evidence of Award . Subject to Section 10.5 , any Restricted Stock Award granted under the Plan shall be evidenced by issuance of a stock certificate or certificates or, in the discretion of the Committee, through issuance of instructions to the Corporations transfer agent to issue the shares of Common Stock subject to the Award in book-entry (uncertificated) form on the books and records of the transfer agent through the Direct Registration System (DRS) or any successor system.
10.5 Delivery of Shares and Transfer Restrictions . Upon issuance of a certificate evidencing a Restricted Stock Award, such certificate shall be held by the Corporation or any custodian appointed by the Corporation for the account of the Participant subject to the terms and conditions of the Plan, and shall bear such a legend setting forth the restrictions imposed thereon as the Committee, in its discretion, may determine. Unless otherwise provided in the applicable Award Notice, the grantee shall have all rights of a stockholder with respect to the Restricted Stock. Upon the issuance of a Restricted Stock Award in book entry form, the Corporations transfer agent shall be apprised of and shall duly note any restrictions such as those set forth above that are applicable to the restricted Stock Award.
10.6 Termination of Restrictions . At the end of the restricted period and provided that any other restrictive conditions of the restricted Share Award are met, or at such earlier time as otherwise determined by the Committee, all restrictions set forth in the Award Notice relating to the Restricted Stock Award or in the Plan shall lapse as to the restricted shares of Common Stock subject thereto, and either: (i) a stock certificate for the appropriate number of shares of Common Stock, free of the restrictions and restricted stock legend, shall be delivered to the Participant or the Participants beneficiary or estate, as the case may be; or (ii) in the event the Stock Award was evidenced in book entry form, the Corporations transfer agent shall be notified of the lapse and or termination of the restrictions and to remove all references thereto in its books and records.
11. PLAN CASH BONUSES .
While cash bonuses may be granted at any time outside this Plan, cash awards may also be granted in addition to other Awards granted under the Plan and in addition to cash awards made outside of the Plan. Subject to the provisions of the Plan, the Committee shall have authority to determine the persons to whom cash bonuses under the Plan shall be granted and the amount, terms and conditions of those cash bonuses. Notwithstanding anything to the contrary in this Plan, no Covered Employee shall be eligible to receive a cash bonus granted under the Plan in excess of the Section 162(m) Cash Maximum in any fiscal year; no cash bonus shall be granted pursuant to this Plan to any Covered Employee unless the cash bonus constitutes a Qualified Performance-Based Award, and no cash bonus awarded pursuant to the Plan shall be paid later than 2 1 ⁄ 2 months after the end of the calendar year in which such bonus was earned.
12. PERFORMANCE GOALS FOR CERTAIN SECTION 162(m) AWARDS .
12.1 162(m) Exemption . Upon the Corporations designation as a publicly held corporation within the meaning of Section 162(m)(2) of the Code, this Plan shall be operated to ensure that upon such designation all subsequent stock options and SARs granted hereunder to any Covered Employee qualify for the Section 162(m) Exemption.
12.2 Qualified Performance-Based Awards . When granting any Award other than stock options or SARs, the Committee may designate the Award as a Qualified Performance-Based Award, based upon a determination that the recipient is or may be a Covered Employee with respect to that Award, and the Committee wishes the Award to qualify for the Section 162(m) Exemption. If an Award is so designated, the Committee shall establish performance goals for the Award within the time period prescribed by Section 162(m)
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of the Code based on one or more of the following Qualified Performance Measures, which may be expressed in terms of Corporation-wide objectives or in terms of objectives that relate to the performance of a Subsidiary or a division, region, department or function within the Corporation or a Subsidiary:
(1) | return on capital, equity, or assets (including economic value created), |
(2) | productivity or operating efficiencies, |
(3) | cost improvements, |
(4) | cash flow, |
(5) | sales revenue growth, |
(6) | net income, earnings per share, or earnings from operations, |
(7) | quality, |
(8) | customer satisfaction, |
(9) | comparable store sales, |
(10) | stock price or total shareholder return, |
(11) | EBITDA or EBITDAR, |
(12) | after tax operating income, |
(13) | book value per Share, |
(14) | debt reduction, |
(15) | strategic business objectives, consisting of one or more objectives based on meeting specified cost targets, business expansion goals and goals relating to acquisitions or divestitures, or |
(16) | any combination of the foregoing. |
Each goal may be expressed on an absolute and/or relative basis, may be based on or otherwise employ comparisons based on internal targets, the past performance of the Corporation or any Subsidiary, operating unit, business segment or division of the Corporation and/or the past or current performance of other companies, and in the case of earnings-based measures, may use or employ comparisons relating to capital, shareholders equity and/or Common Stock outstanding, or to assets or net assets. The Committee may appropriately adjust any evaluation of performance under criteria set forth in this Section 12.2 to exclude any of the following events that occurs during a performance period: (i) asset write-downs, (ii) litigation or claim judgments or settlements, (iii) the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results, (iv) accruals for reorganization and restructuring programs and (v) any extraordinary non-recurring items as described in Accounting Principles Board Opinion No. 30 and/or in managements discussion and analysis of financial condition and results of operations appearing in the Corporations annual report to stockholders for the applicable year. Measurement of the Corporations performance against the goals established by the Committee shall be objectively determinable, and to the extent goals are expressed in standard accounting terms, performance shall be measured according to generally accepted accounting principles as in existence on the date on which the performance goals are established and without regard to any changes in those principles after that date.
12.3 Performance Goal Conditions. Each Qualified Performance-Based Award (other than an Option or SAR) shall be earned, vested and payable (as applicable) only upon the achievement of performance goals established by the Committee based upon one or more of the Qualified Performance Measures, together with the satisfaction of any other conditions, such as continued employment, the Committee may determine to be appropriate; however, (i) the Committee may provide, either in connection with the grant of an Award or by later amendment, that achievement of the performance goals will be waived upon the death or Disability of the Participant, and (ii) the provisions of Section 23 shall apply notwithstanding this sentence.
12.4 Certification of Goal Achievement. Any payment of a Qualified Performance-Based Award granted with performance goals shall be conditioned on the written certification of the Committee in each case that the performance goals and any other material conditions were satisfied. Except as specifically provided in Section 12.3, no Qualified Performance-Based Award may be amended, nor may the Committee exercise any discretionary authority it may otherwise have under the Plan with respect to a Qualified Performance-Based Award, in any manner to waive the achievement of the applicable performance goal based on Qualified Performance Measures or to increase the amount payable under, or the value of, the Award, or otherwise in a manner that would cause the Qualified Performance-Based Award to cease to qualify for the Section 162(m) Exemption.
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13. PAYMENT OF AWARDS.
At the discretion of the Committee, payment of Awards may be made in cash, Common Stock, a combination of cash and Common Stock, or any other form of property the Committee shall determine. In addition, payment of Awards may include terms, conditions, restrictions and limitations, if any, the Committee deems appropriate, including, in the case of Awards paid in the form of Common Stock, restrictions on transfer and forfeiture provisions.
14. TERMINATION OF EMPLOYMENT .
If a Participants employment with the Corporation or a Subsidiary or Affiliate terminates for Cause or for a reason other than death, Disability, retirement, or any other approved reason, then, to the maximum extent allowed by applicable law, all unexercised, unvested, unearned, and unpaid Awards, including without limitation, Awards earned but not yet paid, shall be canceled or forfeited, as the case may be, unless the Participants Award Notice provides otherwise. The Committee shall have the authority to promulgate rules and regulations to (i) determine what events constitute Disability, retirement or termination for an approved reason for purposes of the Plan, and (ii) determine the treatment of a Participant under the Plan in the event of a Participants death, Disability, retirement or termination for an approved reason.
15. NO ASSIGNMENT .
No Awards (other than unrestricted Stock Awards) or any other payment under the Plan shall be subject in any manner to alienation, anticipation, sale, transfer (except by will or the laws of descent and distribution), assignment, pledge, or encumbrance; however, the Committee may (but need not) permit other transfers where the Committee concludes that transferability (i) does not result in accelerated taxation, (ii) does not cause any option intended to be an incentive stock option to fail to be described in Code Section 422(b), and (iii) is otherwise appropriate and desirable, taking into account any state or federal securities laws applicable to transferable Awards. During the lifetime of the Participant no Award shall be payable to or exercisable by anyone other than the Participant to whom it was granted, other than (a) the duly appointed conservator or other lawfully designated representative of the Participant in the case of a permanent Disability involving a mental incapacity or (b) the transferee in the case of an Award transferred in accordance with the preceding sentence.
16. CAPITAL ADJUSTMENTS .
The number and price of shares of Common Stock covered by each Award and Outside Director Award and the total number of shares of Common Stock that may be awarded under the Plan shall be proportionately adjusted to reflect any stock dividend, stock split or share combination of the Common Stock or any recapitalization of the Corporation. In the event of any merger, consolidation, reorganization, liquidation or dissolution of the Corporation, or any exchange of shares involving the Common Stock, any Award or Outside Director Award granted under the Plan shall automatically be deemed to pertain to the securities and other property to which a holder of the number of shares of Common Stock covered by the Award or Outside Director Award would have been entitled to receive in connection with any such event. The Committee shall have the sole discretion to make all interpretations and determinations required under this section to the extent it deems equitable and appropriate. It is the intent of any such adjustment that the value of the Awards or Outside Director Awards held by the Participants or Outside Directors, as the case may be, immediately following the change is the same as that value immediately prior to the change.
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17. WITHHOLDING TAXES .
The Corporation shall have the power and the right to deduct or withhold, or require a Participant to remit to the Corporation, an amount sufficient to satisfy Federal, state, and local taxes (including the Participants FICA obligation) required by law to be withheld with respect to any taxable event arising as a result of this Plan. With respect to withholding required upon any taxable event, the Corporation may elect in its discretion, and Participants may elect, subject to the approval of the Committee, to satisfy the withholding requirement, in whole or in part, by withholding or having the Corporation withhold shares of Common Stock having a Fair Market Value on the date the tax is to be determined equal to (and shall not exceed) the minimum statutory total tax which could be imposed on the transaction. All elections by Participants shall be irrevocable, made in writing, and signed by the Participant.
18. NONCOMPETITION; CONFIDENTIALITY .
For purposes of this Section 18, Corporation shall include any Subsidiary or Affiliate employing the Participant. A Participant will not, without the written consent of the Corporation, either during or after his or her employment by the Corporation, disclose to anyone or make use of any confidential information which he or she has acquired during his or her employment relating to any of the business of the Corporation, except as such disclosure or use may be required in connection with his or her work as an employee of Corporation, or as demanded by a subpoena issued by a court of competent jurisdiction, if the Participant gives notice of the demand to the Corporation as soon as reasonably possible after receipt of the subpoena. The confidential information of the Corporation includes, but is not limited to, all technology, recipes, business systems and styles, customer lists and all other Corporation proprietary information not generally known to the public. During Participants employment by the Corporation, he or she will not, either as principal, agent, consultant, employee or otherwise, engage in any work or other activity in competition with the Corporation in the field or fields in which he or she has worked for the Corporation. Unless the Award Notice specifies otherwise, a Participant shall forfeit all rights under this Plan to any unexercised or unpaid Awards if, in the determination of the Committee, the Participant has violated the Agreement set forth in this Section 18, and in that event any further payment or other action with respect to any Award shall be made or taken, if at all, in the sole discretion of the Committee.
19. REGULATORY APPROVALS AND LISTINGS.
Notwithstanding anything contained in the Plan to the contrary, the Corporation shall have no obligation to issue or deliver certificates of Common Stock evidencing Stock Awards or any other Award resulting in the payment of shares of Common Stock prior to (a) the obtaining of any approval from any governmental agency which the Corporation shall, in its sole discretion, determine to be necessary or advisable, (b) the admission of the shares to quotation or listing on the automated quotation system or stock exchange on which the Common Stock may be listed, and (c) the completion of any registration or other qualification of the shares under any State or Federal law or ruling of any governmental body that the Corporation shall, in its sole discretion, determine to be necessary or advisable.
20. PLAN AMENDMENT.
Except as provided in Section 23, the Board or the Committee may, at any time and from time to time, suspend, amend, modify, or terminate the Plan without shareholder approval; however, if an amendment to the Plan would, in the reasonable opinion of the Board or the Committee, either (i) result in repricing stock options or otherwise increase the benefits accruing to Participants or Outside Directors, (ii) increase the number of shares of Common Stock issuable under the Plan, or (iii) modify the requirements for eligibility, then that amendment shall be subject to shareholder approval; and, the Board or Committee may condition any amendment or modification on the approval of shareholders of the Corporation if that approval is necessary or deemed advisable to (i) permit Awards to be exempt from liability under Section 16(b), (ii) to comply with the listing or other requirements of an automated quotation system or stock exchange, or (iii) to satisfy any other tax, securities or other applicable laws, policies or regulations.
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21. AWARD AMENDMENTS.
Except as provided in Section 23, the Committee may amend, modify or terminate any outstanding Award or Outside Director Award without approval of the Participant or Outside Director, as applicable; however:
a. except as otherwise provided in Section 18, subject to the terms of the applicable Award Notice, an amendment, modification or termination shall not, without the Participants or Outside Directors consent, as applicable, reduce or diminish the value of the Award or Outside Director Award determined as if the Award or Outside Director Award had been exercised, vested, cashed in (at the spread value in the case of stock options or SARs) or otherwise settled on the date of that amendment or termination;
b. the original term of any stock option or SAR may not be extended without the prior approval of the shareholders of the Corporation;
c. except as otherwise provided in Section 16 of the Plan, the exercise price of any stock option or SAR may not be reduced, directly or indirectly, without the prior approval of the shareholders of the Corporation; and
d. no termination, amendment, or modification of the Plan shall adversely affect any Award or Outside Director Awards previously granted under the Plan, without the written consent of the affected Participant or Outside Director.
22. GOVERNING LAW .
This Plan shall be governed by and construed in accordance with the laws of the State of Tennessee, except as superseded by applicable Federal law.
23. CHANGE IN CONTROL.
a. Change in Control Followed by Employment Termination . In the event that a Change in Control shall occur and an Employee Participants employment shall terminate within twelve months after the Change in Control (except as provided in the next sentence), then (i) all unexercised Options (whether or not vested or then exercisable) shall automatically become one hundred percent vested and exercisable immediately, (ii) no other terms, conditions, restrictions or limitations shall be imposed upon any of such Options after such date, and in no circumstance shall an Option be forfeited on or after such date and (iii) all such Options shall be valued on the basis of the greater of the Change in Control Price or the Fair Market Value on the date of such termination, and such value shall promptly be paid to such Participant in cash by the Corporation or its successor. The foregoing shall not apply if employment termination is due to (i) death, (ii) disability entitling the Participant to benefits under the Corporations or its successors long-term disability plan, (iii) Cause or (iv) resignation (other than (A) resignation from a declined reassignment to a job that is not reasonably equivalent in responsibility or compensation or that is not in the same geographic area, or (B) resignation within 30 days following a reduction in base pay).
b. Automatic Acceleration and Cash-Out. Upon a Change in Control that results directly or indirectly in the Stock (or the stock of any successor to the Corporation received in exchange for Stock) ceasing to be publicly traded in a national securities market, (i) all unexercised Options (whether or not vested) shall automatically become one hundred percent vested and exercisable immediately, (ii) no other terms, conditions, restrictions or limitations shall be imposed on any such Options after such date, and in no circumstances shall an
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Option be forfeited on or after such date, and (iii) all such Options shall be valued on the basis of the Change in Control Price, and such value shall promptly be paid to the Participants in cash by the Company or its successor.
c. Miscellaneous . Upon a Change in Control, no action, including, without limitation, the amendment, suspension or termination of the Plan, shall be taken that would adversely affect the rights of any Participant or the operation of the Plan with respect to any Option to which a Participant may have become entitled hereunder on or prior to the date of the Change in Control or to which such Participant may become entitled as a result of such Change in Control.
d. Section 16 Insiders . Notwithstanding anything to the contrary herein, any Participant who is subject to the reporting requirements of the Exchange Act with respect to the Corporation, who on the date of the Change in Control holds Options that have been outstanding for a period of less than six months from their date of grant, shall not be paid the consideration described in Section 12(b) above until the first day next following the end of such six-month period.
24. AWARDS TO OUTSIDE DIRECTORS .
24.1 The Board may provide that all or a portion of an Outside Directors annual retainer, meeting fees and/or other awards or compensation as determined by the Board, be payable (either automatically or at the election of an Outside Director) in the form of Non-Qualified Stock Options, Restricted Stock, and/or Other Stock-Based Awards, including unrestricted Shares. The Board shall determine the terms and conditions of any such Awards, including the terms and conditions which shall apply upon a termination of the Non-Employee Directors service as a member of the Board, and shall have full power and authority in its discretion to administer such Awards, subject to the terms of the Plan and applicable law.
24.2 The Board may also grant Awards to Outside Directors pursuant to the terms of the Plan, including any Award described in Sections 8 , 9 and 10 above. With respect to such Awards, all references in the Plan to the Committee shall be deemed to be references to the Board.
25. NO RIGHT TO EMPLOYMENT OR PARTICIPATION .
The grant of an Award under this Plan shall not confer any rights upon the Participant holding such Award other than such terms, and subject to such conditions, as are specified in this Plan as being applicable to such type of Award (or to all Awards) or as are expressly set forth in the Award Notice or other document evidencing such Award. Participation in the Plan shall not give any Participant any right to remain in the employ, or to serve as a director, of the Corporation or any Subsidiary or Affiliate, he Corporation or, in the case of employment with a Subsidiary or Affiliate, the Subsidiary or Affiliate, reserves the right to terminate the employment of any Participant at any time. Further, the adoption of this Plan shall not be deemed to give any Employee or any other individual any right to be selected as a Participant or to be granted an Award.
26. NO RIGHT, TITLE OR INTEREST IN CORPORATION ASSETS .
The Plan is intended to constitute an unfunded plan for incentive compensation. No Participant shall have any rights as a shareholder as a result of participation in the Plan until the date of issuance of a stock certificate in the Participants name, and, in the case of restricted shares of Common Stock, such rights are granted to the Participant under Section 10.3 hereof. To the extent any person acquires a right to receive payments from the Corporation under the Plan, those rights shall be no greater than the rights of an unsecured creditor of the Corporation. In its sole discretion, the Committee may authorize the creation of trusts or other arrangements to meet the obligations created under the Plan to deliver Common Stock or to make payments in lieu of, or with respect to, Plan awards. However, unless the Committee determines otherwise with the express consent of the affected Participant, the existence of any such trusts or other arrangements is consistent with this unfunded status of the Plan.
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26. SECURITIES LAWS .
With respect to Section 16 Insiders, transactions under this Plan are intended to comply with all applicable conditions of Rule 16b-3 or its successors under the Exchange Act. To the extent any provision of the Plan or action by the Committee fails so to comply, it shall be deemed null and void, to the extent permitted by law and deemed advisable by the Committee.
27. REQUIRED WRITTEN REPRESENTATIONS .
The Committee may require each person purchasing shares pursuant to a stock option or other award under the Plan to represent to and agree with the Corporation in writing that the optionee or Participant is acquiring any shares of Common Stock without a view to their distribution. The certificates for shares may include any legend which the Committee deems appropriate to reflect any restrictions on transfer. All certificates for shares of Common Stock or other securities delivered under the Plan shall be subject to stop transfer orders and other restrictions the Committee deems advisable under the rules, regulations and other requirements of the Securities and Exchange Commission, any stock exchange upon which the Common Stock is then listed, and any applicable Federal or state securities laws, and the Committee may cause a legend or legends to be put on any certificates to make appropriate reference to the applicable restrictions. Each Participant is responsible for fully complying with all applicable state and federal securities laws and rules and the Corporation assumes no responsibility for compliance with any such laws or rules pertaining to a Participants resale of any shares of Common Stock acquired pursuant to this Plan.
28. NON-EXCLUSIVE ARRANGEMENT .
Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, subject to shareholder approval if required; and those arrangements may be either generally applicable or applicable only in specific cases.
29. LIMITS ON LIABILITY AND INDEMNIFICATION .
The members of the Committee and the Board shall not be liable to any employee or other person with respect to any determination made under the Plan in a manner that is not inconsistent with their legal obligations as members of the Board. In addition to all other rights of indemnification they may have as directors or as members of the Committee, the members of the Committee shall be indemnified by the Corporation against reasonable expenses, including attorneys fees actually and necessarily incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal therein, to which they or any of them may be a party because of any action taken or failure to act under or in connection with the Plan or any Award granted under it, and against all amounts paid by them in settlement (provided the settlement is approved by independent legal counsel selected by the Corporation) or paid to them in satisfaction of a judgment in that action, suit or proceeding, except in relation to matters as to which it shall be adjudged in the action, suit or proceeding that the Committee member is liable for negligence or misconduct in the performance of his or her duties. Within 60 days after institution of any action, suit or proceeding covered by this Section, the Committee member must inform the Corporation in writing of the claim and offer the Corporation the opportunity, at its own expense, to handle and defend the matter.
FRANKLIN FINANCIAL NETWORK, INC. | ||
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EXHIBIT 10.46
FRANKLIN FINANCIAL NETWORK, INC.
2007 OMNIBUS EQUITY INCENTIVE PLAN
AWARD AGREEMENT FOR INCENTIVE STOCK OPTIONS
THIS INCENTIVE STOCK OPTION AGREEMENT (this Agreement) is made as of the day of , 2013 (the Date of Grant), by and between Franklin Financial Network, Inc., a Tennessee corporation (Corporation) and ( the Participant) pursuant to the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan (the Plan).
WHEREAS, Corporation has adopted its 2007 Omnibus Equity Incentive Plan (the Plan); and
WHEREAS, the committee chosen by Corporation to administer the Plan (the Committee) has determined that Participant is eligible to receive an option to purchase shares of common stock of Corporation (Stock) under an incentive stock option and has determined that it is in the best interest of Corporation to grant the stock option documented herein to Participant.
NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. Grant of Option . Corporation hereby grants to Participant the right to purchase ( ) shares of Stock (the Option Shares) at a price of ($13.00) per Option Share (the Option Price), in accordance with the terms of this Agreement and the Plan (the Option). The Committee, exercising good faith, has determined that the Option Price is equal to at least one hundred percent (100%) of the fair market value of a share of Stock on the Date of Grant. The Option is intended by the parties hereto to be, and shall be treated as, an incentive stock option (as such term is defined under section 422 of the Internal Revenue Code of 1986 (the Code)).
2. Termination of Option.
(a) Termination Date . The Option and all rights hereunder with respect thereto, to the extent such rights shall not have been previously exercised or otherwise terminated, shall terminate and become null and void on , 2023 at 5:00 P.M. (the Termination Date).
(b) Termination of Participants Employment . In the event of the termination of Participants employment by Corporation for any reason other than Participants death, disability or retirement, the Option, to the extent not previously exercised, shall terminate and become void on the date occurring three months after Participant ceases to be an employee of Corporation. Provided, however, notwithstanding any other provisions set forth herein or in the Plan, if Participant shall commit any act of malfeasance affecting Corporation or any affiliated corporation or is convicted of a felony or engages in conduct that would warrant Participants discharge for cause as such is determined by the Committee in its sole discretion, any unexercised portion of the Option shall immediately terminate and become void. A transfer of Participants employment between Corporation and any subsidiary of Corporation shall not be deemed to be a termination of Participants employment.
(c) Death, Disability or Retirement . Upon termination of Participants employment by reason of Participants death, the Option may be exercised, to the extent not previously exercised, by Participants estate or any distributee of the Option under Participants will or the applicable laws of descent and distribution until five years from date of death. Upon termination of Participants employment by reason of disability (within the meaning of Section 22(e)(3) of the Code) or retirement, the Option may be exercised, to the extent not previously exercised, until the earlier of the Termination Date or the date occurring one year from the date of termination of Participants employment.
3. Installment Exercise . Subject to such further limitations as are provided herein, the Option shall become vested and exercisable in five (5) installments, Participant having the right hereunder to purchase from Corporation the following number of Option Shares upon exercise of the Option, on and after the following dates, in cumulative fashion:
(a) on and after the first anniversary of the Date of Grant, up to twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares;
(b) on and after the second anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
(c) on and after the third anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
(d) on and after the fourth anniversary of the Date of Grant, up to an additional twenty percent (20%) (ignoring fractional shares) of the total number of Option Shares; and
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(e) on and after the fifth anniversary of the Date of Grant, the remaining Option Shares.
4. Exercise of Option . The Option, or any portion of the Option eligible to be exercised by the Participant and not previously exercised, may be exercised at any time or times prior to the termination of the Option pursuant to the provisions hereof. The Option may be exercised only if compliance with all Federal and state securities laws can be effected and only by (i) Participants completion, execution and delivery to Corporation of a notice of exercise and investment letter in the form attached hereto as Exhibit A , and (ii) Participants payment to Corporation of an amount equal to the sum of the amount obtained by multiplying the Option Price by the number of Option Shares being purchased plus any withholding tax required by law as determined by Corporation. Payment shall be made by check payable to Corporation or such other medium of payment as the Committee shall approve. Upon the exercise of the Option by Participant, or as soon thereafter as is practicable, Corporation shall issue and deliver to Participant a certificate or certificates evidencing such number of Option Shares as Participant has so elected to purchase. Such certificate or certificates shall be registered in the name of Participant and shall bear any legend required by any Federal or state securities law or agreement as Corporation shall determine.
5. Transferability of Option . The Option may not be transferred, assigned, pledged or hypothecated (whether by operation of law or otherwise), except that the Option may be transferred upon the death of Participant as provided by Participants Will or the applicable laws of descent and distribution. The Option shall not be subject to execution, attachment or similar process. Any attempted assignment, transfer, pledge, hypothecation or other disposition of the Option, or levy of attachment or similar process upon the Option not specifically permitted herein shall be null and void and without effect. Any permitted transferee will be entitled to all of the rights of Participant with respect to the assigned portion of the Option, and such portion of the Option will continue to be subject to all of the then existing terms, conditions and restrictions applicable to the Option, as set forth herein and in the Plan.
6. Adjustments . In the event of the declaration of any stock dividend on the Stock or in the event of any reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of Stock, or like adjustment, the number of shares of Stock and the class of shares of Stock available pursuant to the Option, and the Option Price, shall be adjusted proportionately as determined by the Committee, whose determination shall be conclusive. Notwithstanding the foregoing, in the event of such a reorganization, merger, consolidation, acquisition, separation, recapitalization, split-up, combination or exchange of shares of stock, or like adjustment which results in substantially all the shares of the Stock of Corporation being exchanged for, or converted into cash or other property, the Committee or Corporation shall have the right to terminate the Option as of the date of the exchange or conversion in which case the Option shall convert into the right to receive such cash or property net of the Option Price of the Options.
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7. Termination, Suspension or Amendment of Option . The Committee or Corporation may, at any time, terminate, suspend or amend the Plan or this Agreement.
8. Registration of Underlying Securities . Notwithstanding the foregoing, if the Company determines that issuance of Shares should be delayed pending registration under federal or state securities laws, the receipt of an opinion of counsel satisfactory to the Company that an appropriate exemption from such registration is available, the listing or inclusion of the Shares on any securities exchange or an automated quotation system, or the consent or approval of any governmental regulatory body whose consent or approval is necessary in connection with the issuance of such Shares, the Company may defer exercise of any Option granted hereunder until any of the events described in this sentence has occurred. Notwithstanding anything herein to the contrary, the Company shall be under no obligation to issue any Shares to the extent the Committee determines that such issuance of Shares would be in violation of any applicable state or federal law.
9. Participants Rights . The granting of the Option shall impose no obligation upon Participant to exercise such Option. Participant shall have no equity interest in Corporation, nor shall Participant have any voting, dividend, liquidation or dissolution rights with respect to any capital stock of Corporation solely by reason of having the Option or having executed this Agreement. Upon the issuance and delivery of a certificate for Option Shares after exercise of the Option, Participant shall have the rights of a shareholder with respect to such Option Shares and to receive all dividends or other distributions paid or made with respect thereto. Nothing in this Agreement or the Plan shall confer upon Participant the right to continue in the employ of Corporation or affect any right which Corporation may have to terminate such employment at any time.
10. Elimination of Fractional Shares . If this Agreement requires a computation of the number of shares of Stock subject to the Option, and the number so computed is not a whole number of shares of Stock, such number of shares of Stock shall be rounded down to the next whole number.
11. Shareholders Agreement . Participant agrees to execute any Shareholders Agreement which all other shareholders of Corporation are subject prior to delivery of any Stock upon the exercise of the Option. All Stock delivered to Participant pursuant to the exercise of the Option shall be subject to any Shareholders Agreement previously entered into by Participant relating to the Stock.
12. Incorporation of Plan by Reference . The Option is granted pursuant to the terms of the Plan, a copy of which is attached hereto as Exhibit B and the terms of which are incorporated herein by reference. The Option shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretations and determinations shall be conclusive and binding on the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder. The provisions of the Plan shall control in the event of any inconsistencies between this Agreement and the Plan.
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13. Entire Agreement . This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties and representations between the parties hereto with respect to the Option and the Shares. This Agreement is an integration of any and all prior agreements or understandings, oral or written, with respect to the Option and the Shares.
14. Notices . Any and all notices provided for herein shall be sufficient if in writing, and sent by hand delivery or by certified or registered mail (return receipt requested and first class postage prepaid), in the case of Corporation, to its principal office, and, in the case of Participant, to Participants address as shown on Corporations records.
15. Governing Law . This Agreement shall be construed and enforced in accordance with the laws of the State of Tennessee.
16. Modifications . Except as otherwise provided herein, no change or modification of this Agreement shall be valid unless the same is in writing and signed by the parties hereto.
17. Successors . This Agreement shall be binding on all permitted successors and assigns of Participant including any estate, executors or administrators, trustees, or personal or legal representatives, and, in any such event all references herein to Participant shall, to the extent applicable, be deemed to refer to and include such estate, executors or administrators, trustees or personal or legal representatives, as the case may be.
IN WITNESS WHEREOF, Corporation and Participant have executed this Agreement as of the day and year first above written.
FRANKLIN FINANCIAL NETWORK, INC. | ||
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EXHIBIT A
NOTICE AND REQUEST OF EXERCISE
OF OPTION TO PURCHASE
SHARES OF STOCK
OF FRANKLIN FINANCIAL NETWORK, INC.
The undersigned Participant in the 2007 Omnibus Equity Incentive Plan (the Plan) of Franklin Financial Network, Inc., a Tennessee corporation (Corporation), does by this notice request that Corporation issue to the undersigned that number of shares of Stock specified below (the Shares) at the price per Share specified below pursuant to the exercise of Participants Option under the Plan and the Incentive Stock Option Agreement (the Agreement) between the undersigned and Corporation. Simultaneously herewith, the undersigned delivers to Corporation the purchase price for the Shares [i.e., that amount which is obtained by multiplying the number of the Shares by the price specified], by good check, in accordance with the Agreement.
The undersigned hereby represents and warrants that the undersigned has read and understands the Plan and the Agreement and the terms and conditions set forth therein under which the Shares are acquired, shall be held and may be disposed, and hereby ratifies and confirms such terms and conditions. The undersigned hereby represents and warrants that the undersigned is acquiring the Shares for the undersigneds own account (and not on behalf of any other persons) and without any present view to making a public offering or distribution of same and without any present intention of selling or otherwise transferring same at any particular time or at any particular price or upon the occurrence of any particular event or circumstances (except as set forth in the Plan and the Agreement).
The undersigned acknowledges and understands that in connection with the acquisition of the Shares by the undersigned:
1. Corporation has informed the undersigned that the Shares are not registered under the Securities Act of 1933, as amended (the Act), or any applicable state Blue Sky law or laws and that the Shares may not be transferred or otherwise disposed of unless the Shares are subsequently registered under the Act and the applicable state Blue Sky law or laws or an exemption from such registration requirements is made available.
2. The undersigned has been informed that a legend referring to the restrictions indicated herein on transferability and sale will be placed upon the certificate(s) evidencing the Shares, in addition to the legend referred to in the Agreement.
3. The undersigned has received all information requested or otherwise deemed necessary by the undersigned to make an informed decision as to the investment in Corporation, and has had the opportunity to ask questions of and receive answers from officers of Corporation.
4. The undersigned acknowledges that the issuance of the Shares is subject to the execution by the undersigned of a Shareholders Agreement if required by Corporation.
If the undersigned is required to file a Form 144 with the Securities and Exchange Commission in connection with sales of the Shares pursuant to Rule 144 under the Act, the undersigned will mail a copy of such Form to Corporation at the same time and each time the undersigned mails a copy to the Securities and Exchange Commission.
Very truly yours, | ||||||||
A. | Date of Grant of Incentive Stock | |||||||
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for Shares actually purchased (D multiplied by E): $ |
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FRANKLIN FINANCIAL NETWORK, INC. | ||
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2
EXHIBIT 10.47
FRANKLIN FINANCIAL NETWORK, INC.
2007 OMNIBUS EQUITY INCENTIVE PLAN
AWARD AGREEMENT FOR RESTRICTED STOCK
THIS AWARD AGREEMENT (the Agreement) is made and entered into this day of , 2013 by and between Franklin Financial Network, Inc. (the Company), and (the Participant) pursuant to the Franklin Financial Network, Inc. 2007 Omnibus Equity Incentive Plan (the Plan). Capitalized terms used but not defined herein shall have the same meanings set forth in the Plan.
W I T N E S S E T H :
WHEREAS, pursuant to the Plan and subject to the execution of this Agreement, the Committee has granted, and the Participant desires to receive, an Award.
NOW, THEREFORE, for and in consideration of the premises, the mutual promises and covenants herein contained, and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:
1. AWARD OF RESTRICTED STOCK . On the date specified on Exhibit A attached hereto (the Date of Award) and conditional upon the execution of this Agreement, the Company awarded to the Participant an Award (the Award) in the form of the number of shares of Restricted Stock (the Shares) as is set forth on Exhibit A from the authorized and unissued or treasury Company Stock at and for the purchase price set forth on Exhibit A .
2. RESTRICTIONS . The Shares as to which the restrictions shall not have lapsed and which are not vested shall be forfeited upon effective date of the termination of the Participants status as an employee of the Company; provided, however, that all unvested Shares shall be 100% vested and no longer subject to forfeiture immediately before the effective date of the termination of the Participants status as an employee if such termination is due to (A) the Participants death, (B) the Participants Disability, or (C) a Change in Control. The Shares may not be sold, transferred, pledged, assigned or otherwise alienated or hypothecated until such restrictions lapse and the Shares vest. During the period prior to the lapse of such restrictions and the vesting of such Shares, any stock dividends paid with respect to the Shares shall be subject to the same restrictions and vesting period as the Shares with respect to which they are paid.
3. CERTIFICATES FOR SHARES OF RESTRICTED STOCK . Certificates respecting the Shares shall be registered in the Participants name.
4. SECURITIES LAW RESTRICTIONS . Acceptance of this Agreement shall be deemed to constitute the Participants acknowledgement that the Shares shall be subject to such restrictions and conditions on any resale and on any other disposition as the Company shall deem necessary under any applicable laws or regulations or in light of any stock exchange requirements.
5. LEGEND . In order to enforce the restrictions imposed on the Shares, the certificates representing such Shares shall bear the following legend:
THE TRANSFERABILITY OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF A RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND COMPANY. A COPY OF SUCH AGREEMENT IS ON FILE IN THE OFFICES OF THE SECRETARY OF THE COMPANY, 722 COLUMBIA AVENUE, FRANKLIN, TN 37064.
Such legend shall be removed as the restrictions lapse with respect to such Shares and the Shares vest.
6. MISCELLANEOUS .
The Participants rights under this Agreement can be modified, suspended or canceled only in accordance with the terms of the Plan. This Agreement may not be changed orally, but may be changed only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification or discharge is sought.
The invalidity or unenforceability of any provision hereof shall in no way affect the validity of enforceability of any other provision of this Agreement.
This Agreement shall bind all parties, their respective heirs, executors, administrators and assigns. Nothing contained herein shall be construed as an authorization or right of any party to assign their respective rights or obligations hereunder and the Participant shall have no right to assign this Agreement, and any such attempted assignment shall be ineffective. This Agreement shall be binding upon the Company and its successors or assigns.
This Agreement shall be subject to the applicable provisions, definitions, terms and conditions set forth in the Plan, all of which are incorporated by this reference in this Agreement and the terms of the Plan shall govern in the event of any inconsistency between the Plan and this Agreement.
This Agreement shall be interpreted and construed according to and governed by the laws of the State of Tennessee.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written.
FRANKLIN FINANCIAL NETWORK, INC. | ||
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EXHIBIT A
TO
AWARD AGREEMENT FOR RESTRICTED STOCK between Franklin Financial Network, Inc. and .
1. | Date of Award: | |
2. | Number of Shares of Restricted Stock: | |
3. | Fair Market Value of Each Share: | |
4. | Vesting Date (20% Vested Annually): |
Percent Vested | Amount Vested | Date Vested | ||
20% |
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A-1
Exhibit 10.48
Meyer-Chatfield Compensation Advisors
Nothing in this document should be construed as tax, legal, or accounting advice. MCCA does not practice law or accounting. This document is intended to assist your legal counsel in documenting your specific arrangement and is provided solely for that purpose. It is not a form to be signed, nor is it to be construed as legal advice.
IMPORTANT NOTICE ABOUT THE PRACTICE OF LAW AND ACCOUNTING
The Financial Accounting Standards Board ratified Emerging Issues Task Force issues No. 06-4 on September 20, 2006 implementing the accounting treatment of Endorsement Split Dollar Agreements. Beginning January 1, 2008 institutions maintaining a life insurance policy subsequent to the Executives retirement that allocates all or a portion of the death proceeds to the Executives beneficiary or estate must recognize the cost of the insurance during post-retirement periods in accordance with FASB Statement No. 106.
The Treasury Department has issued final regulations implementing the requirements of Section 409A which apply to nonqualified deferred compensation arrangements. Documentary compliance with Code Section 409A is required by December 31, 2008.
The attached Agreement is intended to facilitate discussion between you and your legal and/or tax advisor. MCCA strongly recommends that you seek review by outside counsel before executing this amendment.
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FRANKLIN SYNERGY BANK
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
THIS AGREEMENT (the Agreement ) is made and entered into this 20 day of AUGUST, 2012, by and between Franklin Synergy Bank (the Bank ) and [ILLEGIBLE] a current employee of the Bank (hereinafter referred to as the Executive ).
INTRODUCTION
WHEREAS, Executive is an officer or other highly paid employee of the Bank;
WHEREAS, the Bank has purchased a life insurance policy (hereinafter referred to as the Insurance Policy ), with MIDLAND AND NEW YORK LIFE hereinafter referred to as the Insurer ), on the life of the Executive;
WHEREAS, the Bank desires to induce Executive to continue to utilize Executives best efforts on behalf of the Bank by its premium payment on the Insurance Policy; and
WHEREAS, the Bank is the sole owner of the Insurance Policy and elects to endorse a portion of the death benefit of the Insurance Policy to Executive.
NOW, THEREFORE, in consideration of the mutual undertakings set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Bank and the Executive agree as follows:
1. | Ownership |
1.1. | Ownership of Insurance Policy . The Bank is the sole owner of the Insurance Policy and shall have the right to exercise all incidents of ownership. The Bank shall be the beneficiary of the remaining death proceeds of the Insurance Policy after payment of the Executive Death Benefit as defined and provided for in this Agreement. The Bank shall at all times be entitled to the Policy cash surrender value, as that term is defined in the Insurance Policy, less any Insurance Policy loans and unpaid interest or cash withdrawals previously incurred by the Bank and any applicable Insurance Policy surrender charges. The cash surrender value shall be determined as of the date of the surrender of the Insurance Policy or death of the Executive, as the case may be. |
1.2. | Right to Insurance Policy . Notwithstanding any provision hereof to the contrary, the Bank shall have the right to sell or surrender the Insurance Policy without terminating this Agreement, provided (i) the Bank replaces the Insurance Policy with a comparable life insurance policy or arrangement that provides the benefit provided under this Agreement and (ii) the Bank and the Executive (who will not unreasonably withhold his signature) execute a new Split Dollar Policy Endorsement for said comparable coverage arrangement, at which time all references to Insurance Policy hereunder shall refer to such replacement coverage arrangement. Without limitation, the Insurance Policy at all times shall be the exclusive property of the Bank, and shall be subject to the claims of the Banks creditors. |
2. | Payment of Premium . The Bank may pay each premium on the Insurance Policy, if applicable, to the Insurer on or before the due date of such premium or within the grace period allowed by the Insurance Policy for the payment of such premium. |
3. |
Economic Benefit . The Bank shall determine the economic benefit attributable to the Executive based on the life insurance premium factor for the Executives age multiplied by the amount of current life |
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insurance protection payable to the Executives beneficiary. The life insurance premium factor is the minimum amount required to be imputed under Treasury Regulation § 1.61-22(d)(3)(ii), or any subsequent applicable authority. The Bank shall impute the economic benefit to the Executive on an annual basis by adding the economic benefit to the Executives Form W-2, or, if applicable, Form 1099. |
4. | Banks Interests . Upon the death of Executive, the Bank shall be entitled to receive a portion of the death benefits payable under the Insurance Policy equal to the Banks Policy Interest and the receipt of this amount by the Bank shall constitute satisfaction of the Banks rights under this Agreement. The Banks Policy Interest shall be an amount equal to all death benefits due under the Insurance Policy less those explicitly provided to the Executives designated beneficiary. The Banks Policy Interest shall be reduced by any amount borrowed against the Insurance Policy by Bank. |
5. | Executives Interests . |
5.1. | Executives Death Benefit . The Executives Death Benefit under this Agreement shall be the lessor of i) seventy percent (70%) of the Executives current base salary on the date of death or ii) one hundred percent (100%) of the net-amount-at risk portion of the life insurance proceeds paid by the Insurer. The net-amount-at-risk portion shall mean the total proceeds payable at death less the cash surrender value of the Insurance Policy. |
5.2. | Termination of Employment . This Agreement shall not provide a death benefit to the Executives Beneficiary if the Executive is not employed by the Bank on his date of death. |
6. | Beneficiary |
6.1. | Beneficiary Designation . The Executive shall have the limited right to designate and change the direct and contingent beneficiaries (collectively, the Beneficiary) of the Executive Death Benefit. The Executives Beneficiary designation shall be made in writing and delivered to the Bank in a form acceptable to the Insurer and Bank. Executives designated Beneficiary may be amended by the Executive from time to time during the term of this Agreement. Upon the acceptance by the Bank of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be cancelled. The Bank shall be entitled to rely on the last Beneficiary Designation Form filed by the Executive and accepted by the Bank prior to the Executives death. |
6.2. | Beneficiary Acknowledgement . No designation or change in designation of a Beneficiary shall be effective until received, accepted and acknowledged in writing by the Bank or its designated agent. |
6.3. | Facility of Payment . If the Bank determines in its discretion that a benefit is to be paid to a minor, to a person incapable of handling the disposition of that persons property, the Bank may direct payment of such benefit to the guardian, legal representative or person having the care or custody of such minor, incompetent person or incapable person. The Bank may require proof of incompetence, minority or guardianship as it may deep appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Executive and the Executives Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Agreement for such payment amount. |
6.4. | No Beneficiary Designation . If the Executive dies without a valid designation of Beneficiary, or if all designated Beneficiaries predecease the Executive, then the Executives surviving spouse shall be the designated Beneficiary. If the Executive has no surviving spouse, the benefits shall be made payable to the personal representative of the Executives estate. |
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7. | Death Claims . |
7.1. | Benefit Paid by Insurance Carrier . The benefit payable to Executives Beneficiaries shall be paid solely by the Insurer from the proceeds of the Insurance Policy on the life of the Insured. In no event shall the Bank be obligated to pay a death benefit under this Agreement from its general funds. Should an Insurer refuse or be unable to pay death proceeds endorsed to Insured under the express terms of this Agreement, or should the Bank cancel the Insurance Policy for any reason, neither Executive nor any Beneficiary shall be entitled to a death benefit. |
7.2. | Suicide or Misstatement . The amount of the benefit payable to Executives Beneficiaries may be reduced or eliminated if Executive fails or refuses to take a physical examination, to truthfully and completely supply such information or complete any forms as may be required by the Bank or the Insurer, or otherwise fails to cooperate with the requests of the Bank or the Insurer, or if Executive dies under circumstances such that the Insurance Policy does not pay a full death benefit, e.g., in the case of suicide within two years after a respective Insurance Policy date. |
8. | Termination of Agreement . |
8.1. | Termination Events . This Agreement may be terminated at any time by written agreement between the Bank and the Executive, and shall automatically terminate on the occurrence of any of the following events prior to the death of the Executive: |
(a) | Termination of the employment of Executive prior to age 65; or |
(b) | Bankruptcy, receivership or dissolution of the Bank. |
8.2. | Rights Upon Termination . If this Agreement is terminated pursuant to this Section 8, the Executive shall forfeit all rights hereunder to the Insurance Policy or the right to designate a Beneficiary and Bank at its sole discretion may retain or terminate the Insurance Policy. |
8.3. | Amendments . This Agreement may be amended or terminated solely by a written agreement signed by the Bank and by the Executive. |
9. | Insurance Company Not a Party . The Insurer shall not be deemed a party to this Agreement for any purpose nor in any way responsible for its validity; shall not be obligated to inquire as to the distribution of any monies payable or paid by it under the Insurance Policy; and shall be fully discharged from any and all liability under the terms of the Insurance Policy upon payment or other performance of its obligations in accordance with the terms of the Insurance Policy, The Insurer shall not be bound by or be deemed to have notice of the provisions of this Agreement. |
10. | Administration |
10.1. | Plan Administrator . This Split Dollar Agreement shall be administered by a Plan Administrator, which shall consist of the Banks board of directors or such committee as the board shall appoint. The Executive may be a member of the Administrator. |
10.2. | Plan Administrator Duties . The Plan Administrator shall have the discretion and authority to (i) make, amend, interpret and enforce all appropriate rules and regulations for the administration of this Agreement and (ii) decide or resolve any and all questions, including interpretations of this Agreement, as may arise in connection with this Agreement. |
10.3. | Binding Effect of Decisions . Any decision or action of the Plan Administrator with respect to any question arising out of or in connection with the administration, interpretation, and application of this Agreement and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in this Agreement. |
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10.4. | Indemnity of Plan Administrator . The Bank shall indemnify and hold harmless the members of the Plan Administrator, and those to whom management and operation responsibilities of the plan have been delegated, against any and all claims, losses, damages, expenses or liabilities arising from any action or failure to act with respect to this Split Dollar Agreement, except in the case of willful misconduct by the Plan Administrator or any of its members. |
10.5. | Information . To enable the Administrator to perform its functions, the Bank shall supply full and timely information to the Administrator on all matters relating to the date and circumstances of the retirement, death, or Termination of Employment of the Executive and such other pertinent information as the Administrator may reasonably require. |
11. | Claims and Review Procedure |
11.1. | Written Claim . A person who believes that he or she being denied a benefit to which he or she is entitled under this Agreement (hereinafter referred to as a Claimant) may file a written request for such benefit with the Plan Administrator, setting forth his or her claim. The request must be addressed to the Bank at its then principal place of business. |
11.2. | Timing of Response . Upon receipt of a claim, the Plan Administrator shall advise the Claimant that a reply will be forthcoming within ninety (90) days and shall, in fact, deliver such reply within such period. The Plan Administrator may, however, extend the reply period for an additional ninety (90) days for reasonable cause. If the claim is denied in whole or in part, the Plan Administrator shall adopt a written opinion, using language calculated to be understood by the Claimant, setting forth: |
(a) | The specific reason or reasons for such denial; |
(b) | The specific reference to pertinent provisions of this Agreement on which such denial is based; |
(c) | A description of any additional material or information necessary for the Claimant to perfect his or her claim and an explanation why such material or such information is necessary; |
(d) | Appropriate information as to the steps to be taken if the Claimant wishes to submit the claim for review; and |
(e) | The time limits for requesting a review under Section 11.3 and for review under Section 11.4 hereof. |
11.3. | Request for Review . With sixty (60) days after the receipt by the Claimant of the written opinion described in Section 11.2, the Claimant may request in writing that the determination of the Plan Administrator be reviewed. Such request must be addressed to the Bank at its then principal place of business. The Claimant or his or her duly authorized representative may, but need not, review the pertinent documents and submit issues and comments in writing for consideration by the Plan Administrator. If the Claimant does not request a review of the Plan Administrators determination within such sixty (60) day period, he or she shall be barred and estopped from challenging the Plan Administrators determination. |
11.4. |
Review of Decision . The Plan Administrator will review its determination within sixty (60) days after receipt of a request for review. After considering all materials presented by the Claimant, the |
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Plan Administrator will render a written opinion, written in a manner calculated to be understood by the Claimant, setting forth the specific reasons for the decision and containing specific references to the pertinent provisions of this Agreement on which the decision is based. If special circumstances require that the sixty (60) day time period be extended, the Plan Administrator will so notify the Claimant and will render the decision as soon as possible, but no later than one hundred twenty (120) days after receipt of the request for review. |
12. | Binding Effect . This Agreement shall bind the Executive and the Bank and their respective heirs, beneficiaries, survivors, executors, administrators, representatives, successors, transferees and assigns, and any Insurance Policy Beneficiary. |
13. | No Guarantee of Employment . This Agreement is not an employment policy or contract. It does not give the Executive the right to remain an employee of the Bank, nor does it interfere with the Banks right to discharge the Executive. It also does not require the Executive to remain an employee nor interfere with the Executives right to terminate employment at any time. |
14. | Waiver of Jury Trial . TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BANK AND EXECUTIVE HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ACTIONS OF THE BANK IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. |
15. | Entire Agreement; Oral Agreements Ineffective . This Agreement constitutes the entire and final agreement between the Bank and Executive as to the subject matter hereof and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. |
16. | No Third Party Beneficiaries . The benefits of this Agreement shall not inure to any third party. This Agreement shall not be construed as creating any rights, claims, or causes of action against Bank or any of its officers, directors, agents, or employees in favor of any person or entity other than Executive. |
17. | Severability . If any one or more of the provisions hereof is declared invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired, and that invalidity, illegality, or unenforceability in one jurisdiction shall not affect the validity, legality, or enforceability of the remaining provisions hereof. |
18. |
Governing Law; Venue; Service of Process . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TENNESSEE. THIS AGREEMENT HAS BEEN ENTERED INTO IN WILLIAMSON COUNTY, TENNESSEE, AND IS PERFORMABLE FOR ALL PURPOSES IN WILLIAMSON COUNTY, TENNESSEE. THE PARTIES HEREBY AGREE THAT ANY LAWSUIT, ACTION, OR PROCEEDING THAT IS BROUGHT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED THEREBY, OR THE ACTIONS OF THE BANK IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT OF ANY OF THIS AGREEMENT SHALL BE BROUGHT IN A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION LOCATED IN WILLIAMSON COUNTY, TENNESSEE. EXECUTIVE HEREBY |
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IRREVOCABLY AND UNCONDITIONALLY (A) SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS, (B) WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH LAWSUIT, ACTION, OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND (C) FURTHER WAIVES ANY CLAIM THAT IT MAY NOW OR HEREAFTER HAVE THAT ANY SUCH COURT IS AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO AGREE THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED AT THE ADDRESS FOR NOTICES CONTAINED IN THE SIGNATURE PAGE OF THIS AGREEMENT. |
19. | Notices . Any notice, consent or demand required or permitted to be given under the provisions of this Agreement by one party to another shall be in writing, shall be signed by the party giving or making the same, and may be given either by delivering the same to such other party personally, or by mailing the same, by United States certified mail, postage prepaid, to such party, addressed to his or her last known address as shown on the records of the Bank. The date of such mailing shall be deemed the date of such mailed notice, consent or demand. |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first written above.
FRANKLIN SYNERGY BANK: | EXECUTIVE: | |||||||
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FRANKLIN SYNERGY BANK
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
BENEFICIARY DESIGNATION FORM
Executive: |
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Social Security Number: |
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Definitions :
Primary Beneficiary means the person(s) who will receive the Benefits in the event of the Executives death. Proceeds will be divided in equal shares if multiple primary beneficiaries are named, unless otherwise indicated. If percentages are listed, the total must equal 100%.
Contingent Beneficiary means the person(s) who will receive the Benefits if the primary beneficiary is not living at the time of the Executives death.
Trust as Beneficiary Designation can be done by using the following written statement: To [name of trustee], trustee of the [name of trust], under a trust agreement dated [date of trust] .
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The undersigned Executive acknowledges that the Bank is providing this Death Benefit subject to the terms and conditions of the Agreement entered into with the Executive; only to the extent that the Death Benefit is actually paid by the Insurer, and that the Bank is also entitled to separate benefits in the Policy.
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FRANKLIN SYNERGY BANK
SPLIT DOLLAR LIFE INSURANCE AGREEMENT
SCHEDULE OF POLICIES
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9
Exhibit 21.1
Subsidairies of the Registant
Name of Subsidiary |
Jurisdiction of Incorporation or Organization |
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Franklin Synergy Bank |
Tennessee | |
Banc Compliance Group, Inc. |
Tennessee |
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement of Franklin Financial Network, Inc. on Form S-4 of our report dated January 21, 2014 on the consolidated financial statements of Franklin Financial Network, Inc. and to the reference to us under the heading Experts in the prospectus.
/s/ Crowe Horwath LLP
Brentwood, Tennessee
February 14, 2014
Exhibit 23.2
MAGGART & ASSOCIATES, P.C. | ||||
Certified Public Accountants | ||||
Stephen M. Maggart, CPA, ABV, CFF | A Tennessee Professional Corporation | Michael F. Murphy, CPA | ||
J. Mark Allen, CPA | 150 FOURTH AVENUE, NORTH | P. Jason Ricciardi, CPA, CGMA | ||
James M. Lawson, CPA | SUITE 2150 | David B. von Dohlen, CPA | ||
M. Todd Maggart, CPA, ABV, CFF | NASHVILLE, TENNESSEE 37219-2417 | T. Keith Wilson, CPA, CITP | ||
Telephone (615) 252-6100 | ||||
Facsimile (615) 252-6105 |
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement of Franklin Financial Network, Inc. on Form S-4 of our report dated March 18, 2013 on the consolidated financial statements of MidSouth Bank and to the reference to us under the heading Experts in the prospectus.
MAGGART & ASSOCIATES, P.C. | ||
/s/ MAGGART & ASSOCIATES, P.C. |
Nashville, Tennessee
February 11, 2014
Exhibit 99.1
PROXY
FRANKLIN FINANCIAL NETWORK, INC.
722 COLUMBIA AVENUE
FRANKLIN, TENNESSEE 37064
(615) 236-2265
ANNUAL MEETING OF SHAREHOLDERS
, 2014
PLEASE SIGN AND RETURN PROMPTLY IN THE SELF-ADDRESSED ENVELOPE
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints Richard Herrington and David H. Kemp as proxies, each with the power to appoint his substitute, and hereby authorizes them to represent and to vote, as designated below, all of the shares of common stock of Franklin Financial Network, Inc., which the undersigned is entitled to vote at the annual meeting of shareholders to be held at the offices of Franklin Synergy Bank at 722 Columbia Avenue, Franklin, Tennessee 37064, on , , 2014, at .m. Central Time, or any adjournment thereof.
This proxy is solicited on behalf of our Board of Directors and will be voted in accordance with the undersigneds instructions set forth herein. If no instruction is given, this proxy will be voted FOR each of Proposals 1 through 5.
OUR BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR EACH OF PROPOSALS 1 THROUGH 5.
PROPOSAL 1 To approve the Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013, by and between MidSouth Bank and Franklin Financial Network, Inc., and Franklin Synergy Bank (the merger agreement) and the issuance of shares of FFN common stock as merger consideration as contemplated by the merger agreement (the FFN merger proposal), as described in the accompanying proxy statement.
PROPOSAL 2 To elect seven directors to serve on our Board of Directors until the 2015 annual meeting of shareholders:
¨ | FOR all nominees listed below: |
Henry W. Brockman
James W. Cross, IV
Richard E. Herrington
David H. Kemp
Paul M. Pratt, Jr.
Melody J. Smiley
Pamela J. Stephens
¨ | WITHHOLD AUTHORITY for all nominees |
Instruction: To withhold authority to vote for any director nominee, mark this box and draw a line through the name of the nominee in the list above.
PROPOSAL 3 To ratify the selection of Crowe Horwath LLP as our independent registered public accounting firm for 2014.
¨ FOR ¨ AGAINST ¨ ABSTAIN
PROPOSAL 4 To approve an amendment to our 2007 Omnibus Equity Incentive Plan to increase the number of shares of the Corporations common stock available for issuance under the plan from 1,500,000 to 2,000,000.
¨ FOR ¨ AGAINST ¨ ABSTAIN
PROPOSAL 5 To approve any proposal of the Board of Directors to adjourn or postpone the annual meeting, if necessary, to permit further solicitation of proxies if there are not sufficient votes at the time of the annual meeting to approve the FFN merger proposal.
¨ FOR ¨ AGAINST ¨ ABSTAIN
With respect to any other item of business that properly comes before the meeting, the proxy holders are authorized to vote the undersigneds shares in accordance with their best judgment.
PLEASE SIGN BELOW AND RETURN IN THE ENCLOSED STAMPED ENVELOPE.
THIS IS THE ONLY DOCUMENT YOU NEED TO RETURN AT THIS TIME.
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Print Shareholder Name | ||||||
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Signature of Shareholder(s) | ||||||
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Signature of Joint Shareholder(s) |
Exhibit 99.2
PLEASE SIGN, DATE AND RETURN THE FOLLOWING PROXY IMMEDIATELY.
REVOCABLE PROXY
MIDSOUTH BANK
ONE EAST COLLEGE STREET
MURFREESBORO, TENNESSEE 37130
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS.
The undersigned hereby appoint(s) each of Lee Moss and Dallas Caudle as Proxy, each with full power to appoint his substitute, and hereby authorize(s) each such Proxy to represent and to vote, as designated below, all of the shares of common stock of MidSouth Bank owned of record by the undersigned as of , 2014, at the Special Meeting of Shareholders to be held on , 2014, or any postponement(s) or adjournment(s) thereof.
1. | Merger . To consider and vote upon a proposal to approve the Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013, by and between MidSouth Bank and Franklin Financial Network, Inc., and Franklin Synergy Bank (the merger agreement). A copy of the merger agreement is attached to the accompanying joint proxy statement/prospectus as Appendix A . |
¨ FOR ¨ AGAINST ¨ ABSTAIN
2. | Adjournment . To consider and vote on a proposal to authorize the board of directors to adjourn the special meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the special meeting, in person or by proxy, to approve the merger agreement. |
¨ FOR ¨ AGAINST ¨ ABSTAIN
3. | Other Business . To transact any other business as may properly come before the meeting or any adjournment or postponement. At the present time, MidSouths board of directors is unaware of any other business that might properly come before the special meeting. |
¨ FOR ¨ AGAINST ¨ ABSTAIN
Only shareholders of record of MidSouth common stock and preferred stock at the close of business on , 2014 will be entitled to notice of and to vote at the special meeting and at any adjournment or postponement at the special meeting.
MIDSOUTHS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT MIDSOUTH SHAREHOLDERS VOTE FOR THE ABOVE PROPOSALS.
THE SHARES REPRESENTED HEREBY WILL BE VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED FOR APPROVAL OF THE MERGER AGREEMENT, FOR THE PROPOSAL TO ALLOW THE ADJOURNMENT OF THE SPECIAL MEETING TO ALLOW TIME FOR FURTHER SOLICITATION OF PROXIES IN THE EVENT THERE ARE INSUFFICIENT VOTES PRESENT AT THE SPECIAL MEETING, IN PERSON OR BY PROXY, TO APPROVE THE MERGER AGREEMENT , AND IN THE DISCRETION OF THE PROXY AS TO ANY OTHER BUSINESS.
When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee, or guardian, please give full title as such. If a corporation, please sign in full corporate name by the president or other authorized officer. If a partnership, please sign in partnership name by an authorized person.
Date: |
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, 2014 |
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Signature of Shareholder | ||||||||
Date: |
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, 2014 |
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Signature of Shareholder, if held jointly |
¨ I plan to attend the Special Meeting.
Exhibit 99.3
PLEASE SIGN, DATE AND RETURN THE FOLLOWING PROXY IMMEDIATELY.
REVOCABLE PROXY
MIDSOUTH BANK
ONE EAST COLLEGE STREET
MURFREESBORO, TENNESSEE 37130
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS.
The undersigned hereby appoint(s) each of Lee Moss and Dallas Caudle as Proxy, each with full power to appoint his substitute, and hereby authorize(s) each such Proxy to represent and to vote, as designated below, all of the shares of preferred stock of MidSouth Bank owned of record by the undersigned as of , 2014, at the Special Meeting of Shareholders to be held on , 2014, or any postponement(s) or adjournment(s) thereof.
1. | Merger . To consider and vote upon a proposal to approve the Agreement and Plan of Reorganization and Bank Merger dated as of November 21, 2013, by and between MidSouth Bank and Franklin Financial Network, Inc., and Franklin Synergy Bank (the merger agreement). A copy of the merger agreement is attached to the accompanying joint proxy statement/prospectus as Appendix A . |
¨ FOR ¨ AGAINST ¨ ABSTAIN
2. | Adjournment . To consider and vote on a proposal to authorize the board of directors to adjourn the special meeting to allow time for further solicitation of proxies in the event there are insufficient votes present at the special meeting, in person or by proxy, to approve the merger agreement. |
¨ FOR ¨ AGAINST ¨ ABSTAIN
3. | Other Business . To transact any other business as may properly come before the meeting or any adjournment or postponement. At the present time, MidSouths board of directors is unaware of any other business that might properly come before the special meeting. |
¨ FOR ¨ AGAINST ¨ ABSTAIN
Only shareholders of record of MidSouth common stock and preferred stock at the close of business on , 2014 will be entitled to notice of and to vote at the special meeting and at any adjournment or postponement at the special meeting.
MIDSOUTHS BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT MIDSOUTH SHAREHOLDERS VOTE FOR THE ABOVE PROPOSALS.
THE SHARES REPRESENTED HEREBY WILL BE VOTED AS SPECIFIED. IF NO SPECIFICATION IS MADE, THE SHARES WILL BE VOTED FOR APPROVAL OF THE MERGER AGREEMENT, FOR THE PROPOSAL TO ALLOW THE ADJOURNMENT OF THE SPECIAL MEETING TO ALLOW TIME FOR FURTHER SOLICITATION OF PROXIES IN THE EVENT THERE ARE INSUFFICIENT VOTES PRESENT AT THE SPECIAL MEETING, IN PERSON OR BY PROXY, TO APPROVE THE MERGER AGREEMENT , AND IN THE DISCRETION OF THE PROXY AS TO ANY OTHER BUSINESS.
When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee, or guardian, please give full title as such. If a corporation, please sign in full corporate name by the president or other authorized officer. If a partnership, please sign in partnership name by an authorized person.
Date: |
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, 2014 |
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Signature of Shareholder | ||||||||
Date: |
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, 2014 |
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Signature of Shareholder, if held jointly |
¨ I plan to attend the Special Meeting.
Exhibit 99.5
Consent of Sterne, Agee & Leach, LLC
We hereby consent to the inclusion of our opinion letter dated November 21, 2013 to the Board of Directors of MidSouth Bank (MidSouth) as Appendix C to the Prospectus/Proxy Statement of MidSouth and Franklin Financial Network, Inc. (Franklin), relating to the proposed merger of MidSouth with and into Franklin, which Prospectus/Proxy Statement is part of the Registration Statement on Form S-4 of Franklin, and to the references to our firm and such opinion therein. In giving such consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder, nor do we thereby admit that we are experts with respect to any part of the Registration Statement within the meaning of the term experts as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Sterne, Agee & Leach, LLC | ||||||
New York, New York February 13, 2014 |
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