AMENDED AND RESTATED EMPLOYMENT AGREEMENT
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
THIS
AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made effective as of February 24,
2005, by and between CAVALRY BANKING (the "BANK"), CAVALRY BANCORP, INC. (the
"COMPANY"), a Tennessee corporation; and XX X. XXXXXXX, XX.
("EXECUTIVE").
WHEREAS,
EXECUTIVE is currently employed by the BANK and the COMPANY pursuant to the
terms of that certain Employment Agreement effective as of March 2, 1998;
and
WHEREAS,
the BANK, the COMPANY and EXECUTIVE desire to continue that employment
relationship and to amend and restate the terms and conditions of such
employment;
NOW,
THEREFORE, in consideration of the mutual covenants herein contained, and upon
the other terms and conditions hereinafter provided, the parties hereby agree as
follows:
1. POSITION AND
RESPONSIBILITIES.
During
the period of his employment hereunder, EXECUTIVE agrees to serve as Chairman
and Chief Executive Officer of the COMPANY and the BANK. Executive shall render
administrative and management duties to the COMPANY and the BANK such as are
customarily performed by persons situated in a similar executive
capacity.
2. TERMS AND
DUTIES.
(a) The term
of this Agreement shall be deemed to have commenced as of the date first above
written and shall continue for a period of thirty-six (36) full calendar months
thereafter. Commencing on the first anniversary date, and continuing at each
anniversary date thereafter, the Board of Directors of the COMPANY and the BANK
(the "Board") may extend the Agreement for an additional year. Prior to the
extension of the Agreement as provided herein, the Board of Directors of the
COMPANY and the BANK will conduct a formal performance evaluation of EXECUTIVE
for purposes of determining whether to extend the Agreement, and the results
thereof shall be included in the minutes of the Board's meeting.
(b) During
the period of his employment hereunder, except for periods of absence occasioned
by illness, reasonable vacation periods, and reasonable leaves of absence,
EXECUTIVE shall devote substantially all his business time, attention, skill,
and efforts to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and management of
the BANK; provided, however, that, with the approval of the Board, as evidenced
by a resolution of such Board, from time to time, EXECUTIVE may serve, or
continue to serve, on the boards of directors of, and hold any other offices or
positions in, companies or organizations, which, in such Board's judgment, will
not present any conflict of interest with the BANK, or materially affect the
performance of EXECUTIVE's duties pursuant to this
Agreement.
3. COMPENSATION
AND REIMBURSEMENT.
(a) The compensation
specified under this Agreement shall constitute the salary and benefits paid for
the duties described in Sections 1 and 2. The BANK shall pay EXECUTIVE as
compensation a salary of $168,000 per year ("Base Salary"). Such Base Salary
shall be payable in accordance with the customary payroll practices of the BANK.
During the period of this Agreement, EXECUTIVE's Base Salary shall be reviewed
at least annually; the first such review will be made no later than one year
from the date of this Agreement. Such review shall be conducted by a Committee
designated by the Board, and the Board may increase EXECUTIVE's Base Salary. In
addition to the Base Salary provided in this Section 3(a), the BANK shall
provide EXECUTIVE at no cost to EXECUTIVE with all such other benefits as are
provided uniformly to permanent full- time employees of the BANK.
(b) The BANK
will provide EXECUTIVE with employee benefit plans, arrangements and perquisites
substantially equivalent to those in which EXECUTIVE was participating or
otherwise deriving benefit from immediately prior to the beginning of the term
of this Agreement, and the BANK will not, without EXECUTIVE's prior written
consent, make any changes in such plans, arrangements or perquisites which would
adversely affect EXECUTIVE's rights or benefits thereunder. Without limiting the
generality of the foregoing provisions of this Subsection (b), EXECUTIVE will be
entitled to participate in or receive benefits under any employee benefit plans
including, but not limited to, retirement plans, supplemental retirement plans,
pension plans, profit-sharing plans, health-and-accident plan, medical coverage
or any other employee benefit plan or arrangement made available by the BANK in
the future to its senior executives and key management employees, subject to,
and on a basis consistent with, the terms, conditions and overall administration
of such plans and arrangements. EXECUTIVE will be entitled to incentive
compensation and bonuses as provided in any plan, or pursuant to any arrangement
of the BANK, in which EXECUTIVE is eligible to participate. Nothing paid to
EXECUTIVE under any such plan or arrangement will be deemed to be in lieu of
other compensation to which EXECUTIVE is entitled under this Agreement, except
as provided under Section 5(e).
(c) In
addition to the Base Salary provided for by paragraph (a) of this Section 3, the
BANK shall pay or reimburse EXECUTIVE for all reasonable travel and other
obligations under this Agreement and may provide such additional compensation in
such form and such amounts as the Board may from time to time
determine.
4. PAYMENTS
TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the
occurrence of an Event of Termination (as herein defined) during EXECUTIVE's
term of employment under this Agreement, the provisions of this Section shall
apply. As used in this Agreement, an "Event of Termination" shall mean and
include any one or more of the following: (i) the termination by the BANK of
EXECUTIVE's full-time employment hereunder for any reason other than a Change in
Control, as defined in Section 5(a) hereof; disability, as defined in Section
6(a) hereof; death; retirement, as defined in Section 7 hereof; or Termination
for Cause, as defined in Section 8 hereof; (ii) EXECUTIVE's resignation from the
BANK's employ, upon (A) unless consented to by EXECUTIVE, a material change in
EXECUTIVE's
function, duties, or responsibilities, which change would cause EXECUTIVE's
position to become one of lesser responsibility, importance, or scope from the
position and attributes thereof described in Sections 1 and 2, above, any such
material change shall be deemed a continuing breach of this Agreement, (B) a
relocation of EXECUTIVE's principal place of employment by more than 5 miles
from its location at the effective date of this Agreement, or a material
reduction in the benefits and perquisites to EXECUTIVE from those being provided
as of the effective date of this Agreement, (C) the liquidation or dissolution
of the BANK, or (D) any material breach of this Agreement by the BANK. Upon the
occurrence of any event described in clauses (A), (B), (C) or (D), above,
EXECUTIVE shall have the right to elect to terminate his employment under this
Agreement by resignation upon not less than sixty (60) days prior written notice
given within a reasonable period of time not to exceed, except in case of a
continuing breach, four (4) calendar months after the event giving rise to said
right to elect.
(b) Upon the
occurrence of an Event of Termination, the BANK shall pay EXECUTIVE, or, in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to the payments due to EXECUTIVE for the remaining term of the Agreement,
including Base Salary, bonuses, and any other cash or deferred compensation paid
or to be paid (including the value of employer contributions that would have
been made on EXECUTIVE's behalf over the remaining term of the agreement to any
tax-qualified retirement plan sponsored by the BANK as of the Date of
Termination), to EXECUTIVE for the term of the Agreement provided, however, that
if the BANK is not in compliance with its minimum capital requirements or if
such payments would cause the BANK's capital to be reduced below its minimum
capital requirements, such payments shall be deferred until such time as the
BANK is in capital compliance. All payments made pursuant to this Section 4(b)
shall be paid in substantially equal monthly installments over the remaining
term of this Agreement following EXECUTIVE's termination; provided, however,
that if the remaining term of the Agreement is less than one (1) year
(determined as of EXECUTIVE's Date of Termination), such payments and benefits
shall be paid to EXECUTIVE in a lump sum within thirty (30) days of the Date of
Termination.
(c) Upon the
occurrence of an Event of Termination, the BANK will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the BANK for EXECUTIVE prior to his termination. Such coverage
shall cease upon the expiration of the remaining term of this
Agreement.
5. CHANGE IN
CONTROL.
(a) No benefit shall be paid
under this Section 5 unless there shall have occurred a Change in Control of the
COMPANY or the BANK. For purposes of this Agreement, a 'Change in Control" of
the COMPANY or the BANK shall be deemed to occur if and when (a) there occurs a
change in control of the BANK or the COMPANY within the meaning of the Home
Owners Loan Act of 1933 and 12 C.F.R. Part 574, (b) any person (as such term is
used in Sections 13(d) and 14(d)(2) of the Exchange Act) is or becomes the
beneficial owner, directly or indirectly, of securities of the COMPANY or the
BANK representing twenty-five percent (25%) or more of the combined voting power
of the COMPANY's or the BANK's then outstanding securities, (c) the membership
of the board of directors of the COMPANY or the BANK changes
as the
result of a contested election, such that individuals who were directors at the
beginning of any twenty-four (24) month period (whether commencing before or
after the date of adoption of this Agreement) do not constitute a majority of
the Board at the end of such period, or (d) shareholders of the COMPANY or the
BANK approve a merger, consolidation, sale or disposition of all or
substantially all of the COMPANY's or the BANK's assets, or a plan of partial or
complete liquidation.
(b) If any of
the events described in Section 5(a) hereof constituting a Change in Control
have occurred or the Board of the BANK or the COMPANY has reasonably determined
that a Change in Control (as defined herein) has occurred, EXECUTIVE shall be
entitled to the benefits provided in paragraphs (c), (d) and (e) of this Section
5 upon his subsequent involuntary termination following the effective date of a
Change in Control (or voluntary termination within twelve (12) months of the
effective date of a Change in Control following any material demotion, loss of
title, office or significant authority (it being understood that absent an
equivalent executive position with the ultimate parent entity of the Company or
its successor, the board of which is elected by public investors, Executive
shall not be deemed to have equivalent responsibility, importance and scope with
his current position), material reduction in his annual compensation or benefits
(other than a reduction affecting the BANK's personnel generally), or the
relocation of his principal place of employment by more than 5 miles from its
location immediately prior to the Change in Control), unless such termination is
because of his death, retirement as provided in Section 7, termination for
Cause, or termination for Disability.
(c) Upon the occurrence of a
Change in Control followed by EXECUTIVE's termination of employment, the BANK
shall pay EXECUTIVE, or in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a sum equal to 2.99 times EXECUTIVE's "base amount," within
the meaning of Section 280G(b)(3) of the Internal Revenue Code of 1986 ("Code"),
as amended. Such payment shall be made in a lump sum paid within ten (10) days
of EXECUTIVE's Date of Termination.
(d) Upon the
occurrence of a Change in Control followed by EXECUTIVE's termination of
employment as described in 5(b), the BANK will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the BANK for EXECUTIVE prior to his severance. In addition,
EXECUTIVE shall be entitled to receive the value of employer contributions that
would have been made on EXECUTIVE's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the BANK as of the
Date of Termination. Such coverage and payments shall cease upon the expiration
of thirty-six (36) months.
(e) Upon the occurrence of a
Change in Control, EXECUTIVE shall be entitled to receive benefits due him
under, or contributed by the COMPANY or the BANK on his behalf, pursuant to any
retirement, incentive, profit sharing, bonus, performance, disability or other
employee benefit plan maintained by the BANK or the COMPANY on EXECUTIVE's
behalf to the extent that such benefits are not otherwise paid to EXECUTIVE upon
a Change in Control.
(f) Notwithstanding
the preceding paragraphs of this Section 5, in the event that the aggregate
payments or benefits to be made or afforded to EXECUTIVE under this Section,
together with any other payments or benefits received or to be received by
EXECUTIVE in connection with a Change in Control, would be deemed to include an
"excess parachute payment" under Section 280G of the Code, then, at the election
of EXECUTIVE, (i) such payments or benefits shall be payable or provided to
EXECUTIVE over the minimum period necessary to reduce the present value of such
payments or benefits to an amount which is one dollar ($1.00) less than three
(3) times EXECUTIVE's "base amount" under Section 280G(b)(3) of the Code or (ii)
the payments or benefits to be provided under this Section 5 shall be reduced to
the extent necessary to avoid treatment as an excess parachute payment with the
allocation of the reduction among such payments and benefits to be determined by
EXECUTIVE.
6. TERMINATION
FOR DISABILITY.
(a) If EXECUTIVE shall become
disabled as defined in the BANK's then current disability plan (or, if no such
plan is then in effect, if EXECUTIVE is permanently and totally disabled within
the meaning of Section 22(e)(3) of the Code as determined by a physician
designated by the Board), the BANK may terminate EXECUTIVE's employment for
"Disability."
(b) Upon
EXECUTIVE's termination of employment for Disability, the BANK will pay
EXECUTIVE, as disability pay, a bi-weekly payment equal to three-quarters (3/4)
of EXECUTIVE's bi-weekly rate of Base Salary on the effective date of such
termination. These disability payments shall commence on the effective date of
EXECUTIVE's termination and will end on the earlier of (i) the date EXECUTIVE
returns to the full-time employment of the BANK in the same capacity as he was
employed prior to his termination for Disability and pursuant to an employment
agreement between EXECUTIVE and the BANK; (ii) EXECUTIVE's full-time employment
by another employer; (iii) EXECUTIVE attaining the age of sixty-five (65); or
(iv) EXECUTIVE's death; or (v) the expiration of the term of this Agreement. The
disability pay shall be reduced by the amount, if any, paid to EXECUTIVE under
any plan of the BANK providing disability benefits to EXECUTIVE.
(c) The BANK
will cause to be continued life, medical, dental and disability coverage
substantially identical to the coverage maintained by the BANK for EXECUTIVE
prior to his termination for Disability. This coverage and payments shall cease
upon the earlier of (i) the date EXECUTIVE returns to the full-time employment
of the BANK, in the same capacity as he was employed prior to his termination
for Disability and pursuant to an employment agreement between EXECUTIVE and the
BANK; (ii) EXECUTIVE's full-time employment by another employer; (iii)
EXECUTIVE's attaining the age of sixty-five (65); (iv) EXECUTIVE's death; or (v)
the expiration of the term of this Agreement.
(d) Notwithstanding
the foregoing, there will be no reduction in the compensation otherwise payable
to EXECUTIVE during any period during which EXECUTIVE is incapable of performing
his duties hereunder by reason of temporary disability.
7. TERMINATION
UPON RETIREMENT; DEATH OF EXECUTIVE; RESIGNATION
Termination
by the BANK of EXECUTIVE based on "Retirement" shall mean retirement at or after
attaining age sixty-five (65) or in accordance with any retirement arrangement
established with EXECUTIVE's consent with respect to him. Upon termination of
EXECUTIVE upon Retirement, EXECUTIVE shall be entitled to all benefits under any
retirement plan of the BANK or the COMPANY and other plans to which EXECUTIVE is
a party. Upon the death of EXECUTIVE during the term of this Agreement, the BANK
shall pay to EXECUTIVE's estate the compensation due to EXECUTIVE through the
last day of the calendar month in which his death occurred. Upon the voluntary
resignation of EXECUTIVE during the term of this Agreement, other than in
connection with an Event of Termination, the BANK shall pay to EXECUTIVE the
compensation due to EXECUTIVE through his Date of Termination.
8. TERMINATION
FOR CAUSE.
For
purposes of this Agreement, "Termination for Cause" shall include termination
because of EXECUTIVE's personal dishonesty, incompetence, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, or regulation (other
than traffic violations or similar offenses) or final cease-and-desist order, or
material breach of any provision of this Agreement. Notwithstanding the
foregoing, EXECUTIVE shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to him a copy of a resolution
duly adopted by the affirmative vote of not less than three-fourths (3/4) of the
members of the Board at a meeting of the Board called and held for that purpose
(after reasonable notice to EXECUTIVE and an opportunity for him, together with
counsel, to be heard before the Board), finding that in the good faith opinion
of the Board, EXECUTIVE was guilty of conduct justifying termination for Cause
and specifying the reasons thereof. EXECUTIVE shall not have the right to
receive compensation or other benefits hereunder for any period after
termination for Cause. Any stock options granted to EXECUTIVE under any stock
option plan or any unvested awards granted under any other stock benefit plan of
the BANK, the COMPANY, or any subsidiary or affiliate thereof, shall become null
and void effective upon EXECUTIVE's receipt of Notice of Termination for Cause
pursuant to Section 10 hereof, and shall not be exercisable by EXECUTIVE at any
time subsequent to such Termination for Cause.
9. REQUIRED
PROVISIONS.
(a) The BOARD
may terminate EXECUTIVE's employment at any time, but any termination by the
BOARD, other than Termination for Cause, shall not prejudice EXECUTIVE's right
to compensation or other benefits under this Agreement. EXECUTIVE shall not have
the right to receive compensation or other benefits for any period after
Termination for Cause as defined in Section 8 herein.
(b) If
EXECUTIVE is suspended and/or temporarily prohibited from participating in the
conduct of the BANK's affairs by a notice served under Section 8(e)(3) or (g)(1)
of the Federal Deposit Insurance Act ("FDIA") (12 U.S.C. 1818(e)(3) and (g)(1)),
the BANK's obligations under the Agreement shall be suspended as of the date of
service, unless stayed by
appropriate
proceedings. If the charges in the notice are dismissed, the BANK may, in its
discretion, (i) pay EXECUTIVE all or part of the compensation withheld while its
contract obligations were suspended and (ii) reinstate (in whole or in part) any
of its obligations that were suspended.
(c) If
EXECUTIVE is removed and/or permanently prohibited from participating in the
conduct of the BANK's affairs by an order issued under Section 8(e)(4) or (g)(1)
of the FDIA (12 U.S.C. 1818(e)(4) or (g)(1)), all obligations of the BANK under
the Agreement shall terminate as of the effective date of the order, but vested
rights of the contracting parties shall not be affected.
(d) If the
BANK is in default (as defined in Section 3(x)(1) of the FDIA), all obligations
under this Agreement shall terminate as of the date of default, but this
paragraph shall not affect any vested rights of the parties.
(e) Obligations
under this Agreement shall terminate (except to the extent determined by the
appropriate federal banking regulator that continuation of the Agreement is
necessary for the continued operation of the BANK) if compliance with the terms
thereof would violate 12 CFR Part 359. Any rights of the parties that have
already vested, however, shall not be affected by such action.
(f) Any
payments made to EXECUTIVE pursuant to this Agreement, or otherwise, are subject
to and conditioned upon compliance with 12 U.S.C. Section 1828(k) and any
regulations promulgated thereunder.
(g) Notwithstanding
anything in this Agreement to the contrary, BANK may adjust the timing of the
amounts payable pursuant to this Agreement (including but not limited to
Sections 4 and 5) in such a manner as BANK reasonably determines is necessary to
prevent EXECUTIVE from being subject to the penalty tax provisions of Section
409A of the Internal Revenue Code of 1986, as amended.
10. NOTICE.
(a) Any
purported termination by the BANK or by EXECUTIVE shall be communicated by
Notice of Termination to the other party hereto. For purposes of this Agreement,
a "Notice of Termination" shall mean a written notice which shall indicate the
specific termination provision in this Agreement relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of EXECUTIVE's employment under the provision so
indicated.
(b) "Date of
Termination" shall mean (A) if EXECUTIVE's employment is terminated for
Disability, thirty (30) days after a Notice of Termination is given (provided
that he shall not have returned to the performance of his duties on a full-time
basis during such thirty (30) day period), and (B) if his employment is
terminated for any other reason, other than Termination for Cause, the date
specified in the Notice of Termination. In the event of
EXECUTIVE's
Termination for Cause, the Date of Termination shall be the same as the date of
the Notice of Termination.
(c) If,
within thirty (30) days after any Notice of Termination is given, the party
receiving such Notice of Termination notifies the other party that a dispute
exists concerning the termination, except upon the occurrence of a Change in
Control and voluntary termination by EXECUTIVE in which case the Date of
Termination shall be the date specified in the Notice, the Date of Termination
shall be the date on which the dispute is finally determined, either by mutual
written agreement of the parties, by a binding arbitration award, or by a final
judgment, order or decree of a court of competent jurisdiction (the time for
appeal there from having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable
diligence.
11. NON-COMPETITION.
(a) In the
event any termination of EXECUTIVE's employment hereunder pursuant to an Event
of Termination as provided in Section 4 hereof, EXECUTIVE agrees not to compete
with the BANK and/or the COMPANY for a period equal to the number of months then
remaining in the term of this agreement, as extended pursuant to Section 2(a)
following such termination, but in no event for more than 36 months after the
date of termination, in any city, town or county in which the BANK and/or the
COMPANY has an office or has filed an application for regulatory approval to
establish an office, determined as of the effective date of such termination. In
the event of termination by EXECUTIVE of employment other than as described in
Section 4(a)(ii), and other than after a Change in Control, EXECUTIVE agrees not
to compete with the BANK and/or the Company for a period of one year in any
city, town or county in which the BANK or the COMPANY has an office or has filed
an application for regulatory approval to establish an office, determined as of
the effective date of termination, in consideration of the payment, quarterly in
arrears, of an amount equal to the annual amount payable pursuant to the
preceding sentence. EXECUTIVE agrees that during such period and within said
cities, towns and counties, EXECUTIVE shall not work for or advise, consult or
otherwise serve with, directly or indirectly, any entity whose business
materially competes with the depository, lending or other business activities of
the BANK and/or the COMPANY. The parties hereto, recognizing that irreparable
injury will result to the BANK and/or the COMPANY, its business and property in
the event of EXECUTIVE's breach of this Subsection 11(a) agree that in the event
of any such breach by EXECUTIVE, the BANK and/or the COMPANY will be entitled,
in addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by EXECUTIVE, EXECUTIVE's partners, agents,
servants, employers, employees and all persons acting for or with EXECUTIVE.
EXECUTIVE represents and admits that in the event of the termination of his
employment pursuant to Section 4 hereof, EXECUTIVE's experience and capabilities
are such that EXECUTIVE can obtain employment in a business engaged in other
lines and/or of a different nature than the BANK and/or the COMPANY, and that
the enforcement of a remedy by way of injunction will not prevent EXECUTIVE from
earning a livelihood. Nothing herein will be construed as prohibiting the BANK
and/or the COMPANY from pursuing any other remedies available to the BANK
and/or
the COMPANY for such breach or threatened breach, including the recovery of
damages from EXECUTIVE.
(b) EXECUTIVE
recognizes and acknowledges that the knowledge of the business activities and
plans for business activities of the BANK and affiliates thereof, as it may
exist from time to time, is a valuable, special and unique asset of the business
of the BANK. EXECUTIVE will not, during or after the term of his employment,
disclose any knowledge of the past, present, planned or considered business
activities of the BANK or affiliates thereof to any person, firm, corporation,
or other entity for any reason or purpose whatsoever. Notwithstanding the
foregoing, EXECUTIVE may disclose any knowledge of banking, financial and/or
economic principles, concepts or ideas which are not solely and exclusively
derived from the business plans and activities of the BANK. In the event of a
breach or threatened breach by EXECUTIVE of the provisions of this Section, the
BANK will be entitled to an injunction restraining EXECUTIVE from disclosing, in
whole or in part, the knowledge of the past, present, planned or considered
business activities of the BANK or affiliates thereof, or from rendering any
services to any person, firm, corporation, other entity to whom such knowledge,
in whole or in part, has been disclosed or is threatened to be disclosed.
Nothing herein will be construed as prohibiting the BANK from pursuing any other
remedies available to the BANK for such breach or threatened breach, including
the recovery of damages from EXECUTIVE.
12. SOURCE OF
PAYMENTS.
All
payments provided in this Agreement shall be timely paid in cash or check from
the general funds of the BANK. The COMPANY, however, guarantees all payments and
the provision of all amounts and benefits due hereunder to EXECUTIVE and, if
such payments are not timely paid or provided by the BANK, such amounts and
benefits shall be paid or provided by the COMPANY.
13. EFFECT ON
PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This
Agreement contains the entire understanding between the parties hereto and
supersedes any prior employment agreement between the BANK or any predecessor of
the BANK and EXECUTIVE, except that this Agreement shall not affect or operate
to reduce any benefit or compensation inuring to EXECUTIVE of a kind elsewhere
provided. No provision of this Agreement shall be interpreted to mean that
EXECUTIVE is subject to receiving fewer benefits than those available to him
without reference to this Agreement.
14. NO
ATTACHMENT.
(a) Except as
required by law, no right to receive payments under this Agreement shall be
subject to anticipation, commutation, alienation, sale, assignment, encumbrance,
charge, pledge, or hypothecation, or to execution, attachment, levy, or similar
process or assignment by operation of law, and any attempt, voluntary or
involuntary, to affect any such action shall be null, void, and of no
effect.
(b) This
Agreement shall be binding upon, and inure to the benefit of, EXECUTIVE, the
BANK, the COMPANY and their respective successors and assigns.
15. MODIFICATION
AND WAIVER.
(a) This
Agreement may not be modified or amended except by an instrument in writing
signed by the parties hereto.
(b) No term
or condition of this Agreement shall be deemed to have been waived, nor shall
there by any estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel. No such written waiver shall be deemed a continuing waiver unless
specifically stated therein, and each such waiver shall operate only as to the
specific term or condition waived and shall not constitute a waiver of such term
or condition for the future as to any act other than that specifically
waived.
16. SEVERABILITY.
If, for
any reason, any provision of this Agreement, or any part of any provision, is
held invalid, such invalidity shall not affect any other provision of this
Agreement or any part of such provision not held so invalid, and each such other
provision and part thereof shall to the full extent consistent with law continue
in full force and effect.
17. HEADINGS
FOR REFERENCE ONLY.
The
headings of sections and paragraphs herein are included solely for convenience
of reference and shall not control the meaning or interpretation of any of the
provisions of this Agreement.
18. GOVERNING
LAW.
This
Agreement shall be governed by the laws of the State of Tennessee, unless
otherwise specified herein; provided, however, that in the event of a conflict
between the terms of this Agreement and any applicable federal or state law or
regulation, the provisions of such law or regulation shall prevail.
19. ARBITRATION.
Any
dispute or controversy arising under or in connection with this Agreement shall
be settled exclusively by arbitration, conducted before a panel of three
arbitrators sitting in a location selected by the employee within fifty miles
from the location of the BANK, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction; provided, however, that
EXECUTIVE shall be entitled to seek specific performance of his right to be paid
until the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement.
20. PAYMENT
OF LEGAL FEES.
All
reasonable legal fees paid or incurred by EXECUTIVE pursuant to any dispute or
question of interpretation relating to this Agreement shall be paid or
reimbursed by the BANK, if EXECUTIVE is successful pursuant to a legal judgment,
arbitration or settlement.
21. INDEMNIFICATION.
The BANK
shall provide EXECUTIVE (including his heirs, executors and administrators) with
coverage under a standard directors' and officers' liability insurance policy at
its expense, or in lieu thereof, shall indemnify EXECUTIVE (and his heirs,
executors and administrators) to the fullest extent permitted under law against
all expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the BANK (whether or not he
continues to be a directors or officer at the time of incurring such expenses or
liabilities), such expenses and liabilities to include, but not be limited to,
judgment, court costs and attorneys' fees and the cost of reasonable
settlements. The provisions of 12 C.F.R. 545.121 shall apply to the BANK's
obligations under this Section 21.
22. SUCCESSOR
TO THE BANK OR THE COMPANY.
The BANK
and the COMPANY shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the BANK or the COMPANY, expressly
and unconditionally to assume and agree to perform the BANK's or the COMPANY's
obligations under this Agreement, in the same manner and to the same extent that
the BANK or the COMPANY would be required to perform if no such succession or
assignment had taken place.
IN
WITNESS WHEREOF, the BANK and the COMPANY have caused this Agreement to be
executed and their seal to be affixed hereunto by a duly authorized officer, and
EXECUTIVE has signed this Agreement, all on the 24th day of
February, 2005.
|
ATTEST: |
CAVALRY
BANCORP, INC. | |
|
By: /s/
Xxxxxxx X. Xxxx |
By: /s/Xxxxxxx
X. Xxxxx, EVP | |
|
ATTEST: |
CAVALRY
BANKING | |
|
By: /s/
Xxxxxxx X. Xxxx |
By: /s/Xxxxxxx
X. Xxxxx, EVP | |
|
WITNESS: |
EXECUTIVE | |
|
By: /s/
Xxxxxxx Xxxxxxx |
/s/Xx
X. Xxxxxxx, Xx. | |
|
Ed.
X. Xxxxxxx, Xx. |
