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EXHIBIT 10.18
EXECUTIVE EMPLOYMENT AGREEMENT
This Executive Employment Agreement entered into this 14 day of
September, 1999 by and among Community Financial Group, Inc., a Tennessee
corporation (the "Company"), The Bank of Nashville, a banking corporation
organized under the laws of the State of Tennessee (the "Bank"), and Xxxx X.
Xxxxxxxxx, Xx. (the "Executive").
WITNESSETH:
WHEREAS, the Company is a one-bank holding company which owns one
hundred per cent (100%) of the outstanding stock of the Bank;
WHEREAS, the Company and the Bank desire to retain the services of
Executive on the terms and conditions set forth herein and, for purposes of
effecting the same, the Boards of Directors of the Company and the Bank have
approved this Employment Agreement and authorized its execution and delivery to
the Executive on behalf of the Company and the Bank;
WHEREAS, the Executive serves as the Chairman of the Board, President
and Chief Executive Officer and a Director of the Company and, as such, is a key
executive officer of the Company whose continued dedication, availability,
advice and counsel to the Company is deemed important to the Company, the Board
of Directors of the Company, and the present and future stockholders of the
Company;
WHEREAS, the Executive serves as the Chairman of the Board, President
and Chief Executive Officer and a Director of the Bank and, as such, is a key
executive officer of the Bank whose continued dedication, availability, advice
and counsel to the Bank is deemed important to the Board of Directors of the
Bank, the Bank and the Company;
WHEREAS, the Company and the Bank wish to attract and retain
well-qualified executives, and it is in the best interests of the Company, the
Bank and the Executive, notwithstanding any change in control of the Company or
the Bank, to secure the services of the Executive, whose experience and
knowledge of the affairs of the Company and the Bank, and whose reputation and
contacts in the industry, are extremely valuable to the Company and the Bank;
and
WHEREAS, the Company and the Bank consider the establishment and
maintenance of a sound and vital management team to be part of their overall
corporate strategy and to be essential to protecting and enhancing the best
interests of the Bank, the Company, and its stockholders.
NOW, THEREFORE, to assure the Company and the Bank of the Executive's
continued dedication, the availability of Executive's advice and counsel to the
Boards of Directors of the Company and the Bank, the availability of Executive's
management skills to the Company and the Bank, and to induce the Executive to
remain and continue in the employ of the Company and the Bank in Executive's
current capacities, and for other good and valuable consideration, the receipt
and adequacy of which each party hereby acknowledged, the Company, the Bank and
the Executive hereby agree as follows:
1. EMPLOYMENT. The Company and the Bank agree to, and do hereby, employ
Executive and Executive agrees to, and does hereby, accept such employment, all
upon the terms and conditions hereinafter set forth.
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2. TERM: The initial term of employment under this Agreement shall be
for a period of one (1) year, commencing on the date first above written and
ending at the close of business one year from said date. This Agreement shall be
automatically renewed for succeeding terms of one (1) year each, unless either
party shall, at least thirty (30) days, but not more than one hundred eighty
(180) days, prior to the expiration of any term, give written notice of his or
its intention not to renew this Agreement.
3. EMPLOYMENT; DUTIES, AUTHORITY, AND RESPONSIBILITIES:
(a) During the term of employment of the Executive by the Company
and the Bank, the Executive shall devote Executive's full business time and
attention to the rendition of services as Chairman, President and Chief
Executive Officer and Director of the Company and as Chairman, President and
Chief Executive Officer and Director of the Bank, and to the furtherance of the
best interests of the Company and the Bank, and shall exert Executive's best
efforts in the rendition of such services. The Executive agrees that in the
rendition of such services and in all aspects of such employment Executive will
comply with the policies, standards and regulations of the Company and the Bank
as from time to time established by their respective Boards of Directors. The
expenditure by the Executive of reasonable amounts of time for charitable,
professional and similar activities is encouraged and shall not be deemed a
breach of this Agreement provided such activities do not materially interfere
with the services to be rendered to the Company and the Bank hereunder.
(b) As Chairman, President and Chief Executive Officer of the
Company, the Executive shall have the general powers and duties of supervision
and management of the Company (the Company includes any and all subsidiaries,
ventures and related business) which usually pertain to such offices and shall
perform all such other duties as are properly required of Executive by the Board
of Directors of the Company. In performing the services hereunder, the Executive
shall be responsible to and shall report only to the Board of Directors of the
Company.
(c) The Board of Directors of the Company hereby grants the
Executive the necessary authority and responsibility for the day-to-day
operations of the Company and the implementation of the policies set by the
Board of Directors of the Company. All officers of the Company shall be
supervised by, be responsible to, and shall report, directly or indirectly, to
the Executive pursuant to such reporting structure as shall be established from
time to time by the Executive. A material reduction or limitation in these
duties and responsibilities by the Company shall constitute a breach of this
Agreement by the Company. In the event of any breach of any provision of this
Agreement by the Company which breach is not cured within ten (10) days after
written notice of the breach to the Company by the Executive shall entitle the
Executive to terminate his employment by the Company pursuant to this Agreement
by not less than sixty (60) days written notice to the Board of Directors of the
Company and, at the option of Executive, to terminate his employment by the Bank
pursuant to this Agreement by not less than sixty (60) days written notice to
the Board of Directors of the Bank. Any such termination by the Executive of his
employment by the Bank hereunder resulting from a breach of the terms of this
Agreement shall be treated the same as a termination by the Bank without cause
and governed by Section 9 below, unless such breach occurs in Contemplation of a
Change of Control or within twelve (12) months after a Change of Control, and
constitutes Good Reason for the Executive to terminate Executive's employment,
in which case it shall be governed by Section 15 below.
(d) As Chairman, President and Chief Executive Officer of the Bank,
the Executive shall have the general powers and duties of supervision and
management of the Bank (the Bank includes any and all subsidiaries, ventures and
related business) which usually pertain to such offices and shall perform all
such other duties as are properly required of him by the Board of Directors. In
performing the services hereunder, the Executive shall be responsible to and
shall report only to the Board of Directors of the Bank.
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(e) The Board of Directors of the Bank hereby grants the Executive
the necessary authority and responsibility for the day-to-day operations of the
Bank and the implementation of the policies set by the Board of Directors of the
Bank. All officers of the Bank shall be supervised by, be responsible to, and
shall report, directly or indirectly, to the Executive pursuant to such
reporting structure as shall be established from time to time by the Executive.
A material reduction or limitation in these duties and responsibilities by the
Bank shall constitute a breach of this Agreement by the Bank. In the event of
any breach of any provision of this agreement by the Bank which breach is not
cured within ten (10) days after written notice of the breach to the Bank by the
Executive shall entitle the Executive to terminate his employment by the Bank
pursuant to this Agreement by not less than sixty (60) days written notice to
the Board of Directors of the Bank and, at the option of Executive, to terminate
his employment by the Company pursuant to this Agreement by not less than sixty
(60) days written notice to the Board of Directors of the Company. Any such
termination by the Executive of his employment by the Bank hereunder resulting
from a breach of the terms of this Agreement shall be treated as a termination
by the Bank without cause and governed by Section 9 below, unless such breach
occurs in Contemplation of a Change of Control or within twelve (12) months
after a Change of Control, and constitutes Good Reason for the Executive to
terminate Executive's employment, in which case it shall be governed by Section
15 below.
4. COMPENSATION: The Bank agrees to pay Executive, and Executive agrees
to accept, as compensation for all services rendered by him to the Company, the
Bank and their affiliates during the period of his employment under this
Agreement, base compensation at the annual rate of not less than $200,000, which
shall be payable in accordance with the normal payroll policies of the Bank and
shall be subject to all appropriate withholding taxes.
5. PARTICIPATION IN BENEFIT PLANS, REIMBURSEMENT OF BUSINESS EXPENSES
AND MOVING EXPENSES:
(a) During the term of this Agreement, Executive shall be entitled
to participate in all pension, group insurance, hospitalization, deferred
compensation, Company paid life insurance, or incentive plans, and any other
benefit plan of the Company or the Bank presently in effect or hereafter adopted
by the Company or the Bank and generally available to all employees of either
organization of senior executive status (the "Benefit Plans").
(b) During the term of this Agreement, to the extent that such
expenditures meet the requirements of the Internal Revenue Code for
deductibility by the Company or the Bank for federal income tax purposes and are
substantiated by the Executive as required by the Internal Revenue Service and
policies of the Company and the Bank, the Bank shall reimburse the Executive
promptly for all expenditures (including travel, entertainment, parking,
business meetings, and the monthly costs, including dues, of maintaining
memberships at appropriate clubs, including, but not limited to, Nashville City
Club) made in accordance with rules and policies established from time to time
by the Board of Directors of the Bank in pursuance and furtherance of the
Company's and the Bank's business and good will.
(c) During the term of this Agreement, in the event that the Company
or the Bank relocates its principal executive offices to a location more than
one hundred (100) miles from Nashville, Tennessee, or the Board of Directors of
either the Company or the Bank requires the Executive to be based anywhere more
than one hundred (100) miles from the Bank's principal executive offices, the
Bank shall pay (or reimburse the Executive for) all reasonable moving expenses
incurred by Executive relating to a change of Executive's principal residence in
connection with such relocation, provided that the Executive furnishes the Bank
with adequate records and documentary evidence for the substantiation of such
reimbursement.
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6. ILLNESS: In the event Executive is unable to perform Executive's
duties under this Agreement on a full-time basis for a period of six (6)
consecutive months by reason of illness or other physical or mental disability,
and at or before the end of such period Executive does not return to work on a
full-time basis, the Company and the Bank may jointly terminate Executive's
Employment pursuant to this Agreement without further or additional compensation
being due the Executive from the Bank pursuant to this Agreement, except that
the Executive shall be paid Executive's base compensation from the Bank at the
rate in effect at the time of Executive's termination for a period of twelve
(12) months from the date of the commencement of the Executive's inability to
perform his duties, less any disability payments payable during such time under
any disability plans maintained and paid for by the Bank, and Executive shall
continue to participate in all Benefit Plans in effect at the time of
Executive's termination for a period of twelve (12) months from the date of the
commencement of the Executive's inability to perform his duties.
7. DEATH: In the event of the Executive's death during the term of this
Agreement, Executive's estate, legal representatives or named beneficiaries (as
directed by the Executive in writing) shall be paid Executive's base
compensation from the Bank at the rate in effect at the time of the Executive's
death under this Agreement for the period of twelve (12) months from the date of
the Executive's death, less any amounts payable to Executive's estate or
beneficiaries under life insurance policies on the life of Executive maintained
and paid for by Bank.
8. TERMINATION BY COMPANY: Notwithstanding the provisions of Section 2
above, the Board of Directors of the Company may, in its sole discretion,
terminate the Executive's employment with the Company under this Agreement at
any time in any lawful manner by not less than thirty (30) days written notice
to the Executive, in which event the Executive shall be entitled to elect to
have such termination likewise constitute a termination of Executive's
employment by the Bank. If Executive so elects, then unless such termination is
for Cause as defined in Section 10 of this Agreement or unless the Executive's
employment is terminated in Contemplation of a Change of Control or within
twelve (12) months after a Change of Control, Executive shall be entitled to the
compensation provided for in Section 9 below.
9. TERMINATION BY BANK: Notwithstanding the provisions of Section 2 of
this Agreement, the Board of Directors of the Bank may, in its sole discretion,
terminate the Executive's employment with the Bank under this Agreement at any
time in any lawful manner by not less than thirty (30) days written notice to
the Executive (or, at the Bank's option, pay for such thirty days in lieu of
notice) and in such event, unless the Bank terminates the Executive's employment
with the Bank for Cause as defined in with Section 10 of this Agreement or,
unless the Executive's employment is terminated in Contemplation of a Change of
Control or within twelve (12) months after a Change of Control, the Executive
shall be paid, during the twelve (12) months following such termination at such
times as payment was theretofore made, the base compensation that the Executive
would have been entitled to receive during such period of time had such
termination not occurred, such payments to be in addition to any payment in lieu
of notice. Furthermore, the Bank shall pay to the Executive in equal monthly
payments an amount sufficient to fully fund any Benefit Plans of the Bank, with
respect to the Executive, commencing at the beginning of the first month
following termination of Executive's employment with the Bank pursuant to this
paragraph, and ending twelve (12) months after such termination. In the event
that a payment made with respect to any benefit plan or program would otherwise
violate the terms of the plan or program, an equivalent amount shall be paid
directly to Executive. Executive shall owe no duty to mitigate these payments,
and shall not be required to obtain or attempt to obtain alternate employment
during such twelve (12) month period. If Executive obtains other gainful
employment during such twelve (12) month period, the compensation and benefits
received by Executive during said period from such other employment shall not
reduce the payments otherwise due to Executive pursuant to this section.
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10. TERMINATION FOR CAUSE:
(a) Notwithstanding the provisions of this Agreement, the Board of
Directors of the Company may, in its sole discretion, terminate the Executive's
employment with the Company for Cause. For the purposes of this Agreement, the
Company shall have "Cause" to terminate the Executive's employment hereunder:
(i) because of the Executive's personal dishonesty, incompetence, willful
misconduct, gross negligence, willful breach of fiduciary duty (including
involving personal profit), failure to substantially perform stated duties
described in Section 3 of this Agreement, willful violation of any material law,
rule, regulation (other than traffic violations or similar offenses), willful
violation of any final cease-and-desist order issued by any regulatory agency
having jurisdiction over the Company or the Bank, or material breach by the
Executive of any provision of this Agreement or any related agreement entered
into by the Executive; or (ii) if the Board of Directors of the Bank terminates
the employment of Executive with the Bank for Cause pursuant to subsection (c)
of this Section 10. For purposes of this paragraph, no act, or failure to act,
on the Executive's part shall be considered "willful" unless done, or omitted to
be done, by him not in good faith or without reasonable belief that his action
or omission was in the best interest of the Company; provided that any act or
omission to act on the Executive's behalf in reliance upon an opinion of counsel
to either the Company or the Bank shall not be deemed to be "willful."
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been a resolution
approved by a majority of the non-officer members of the Board of Directors of
the Company finding that, in the good faith opinion of such majority, the
Executive was guilty of conduct which is deemed to be Cause within the meaning
of this paragraph, after notice to the Executive and an opportunity for him,
together with his counsel, to be heard before such majority (with the Company
Board retaining the right to deliberate without the Executive and his counsel
present before and/or after such hearing).
(b) If the Company terminates the Executive's employment with the
Company for Cause in accordance with Section 10(a) of this Agreement, the
Company shall have no obligation to make any further payments to or provide
benefits for the Executive, provided that the Executive shall be entitled to
receive any accrued compensation or benefits, insured or otherwise, that he
would otherwise have been eligible to receive under any Benefit Plans of the
Company through the date of such termination.
(c) Notwithstanding the provisions of this Agreement, the Board of
Directors of the Bank may, in its sole discretion, terminate the Executive's
employment with the Bank for Cause. For the purposes of this Agreement, the Bank
shall have "Cause" to terminate the Executive's employment hereunder: (i)
because of the Executive's personal dishonesty, incompetence, willful
misconduct, gross negligence, willful breach of fiduciary duty (including
involving personal profit), failure to substantially perform stated duties
described in Section 3 of this Agreement, willful violation of any material law,
rule, regulation (other than traffic violations or similar offenses) , willful
violation of any final cease-and-desist order issued by any regulatory agency
having jurisdiction over the Company or the Bank, the imposition of any sanction
upon the Executive by any such regulatory agency, or material breach by the
Executive of any provision of this Agreement or any related agreement entered
into by the Executive; or (ii) if the Board of Directors of the Company
terminates Executive's employment with the Company for Cause pursuant to
subsection (a) of this Section 10. For purposes of this paragraph, no act, or
failure to act, on the Executive's part shall be considered "willful" unless
done, or omitted to be done, by him not in good faith or without reasonable
belief that his action or omission was in the best interest of the Bank;
provided that any act or omission to act on the Executive's behalf in reliance
upon an opinion of counsel to either the Company or the Bank shall not be deemed
to be "willful." Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Cause unless and until there shall have been
a resolution approved by a majority of the non-officer members of the Board of
Directors of the Bank finding that, in the good faith opinion of such majority,
the Executive was guilty of conduct which is deemed to be Cause within the
meaning of this paragraph, after notice to the Executive and an opportunity for
him, together with his counsel to be heard before such majority (with the Bank
Board retaining the right to deliberate without the Executive and his counsel
present before and/or after such hearing).
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(d) If the Bank terminates the Executive's employment with the Bank
for Cause in accordance with Section 10(c) of this Agreement, the Bank shall
have no obligation to make any further payments to or provide benefits for the
Executive, provided that the Executive shall be entitled to receive any accrued
compensation or benefits, insured or otherwise, which Executive would otherwise
have been eligible to receive under any Benefit Plans of the Bank through the
date of such termination.
11. TERMINATION BY THE EXECUTIVE: The Executive may terminate the
Executive's employment with the Company or with the Bank hereunder at any time
upon sixty (60) days written notice to the affected entity. If the Executive
terminates the Executive's employment with either the Company or the Bank other
than for breach of this Agreement as provided in Section 3, for Good Reason, in
Contemplation of a Change of Control or within twelve (12) months after a Change
of Control, Executive shall be deemed to have voluntarily terminated Executive's
employment with both the Company and the Bank ("Voluntary Termination"), and
thereupon the Company and the Bank shall have no obligation to make any further
payments to or provide benefits for the Executive, provided that the Executive
shall be entitled to receive any accrued compensation and benefits, insured or
otherwise, that he would otherwise have been eligible to receive under any
Benefit Plans of the Company or the Bank through the date of such termination.
12. DEFINITION OF CHANGE OF CONTROL OF THE COMPANY: A "Change of
Control" of the Company shall mean a change of control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 ("Exchange Act") or
such item thereof which may hereafter pertain to the same subject; provided
that, and notwithstanding the foregoing, a Change of Control shall be deemed to
have occurred if (i) any person (as that 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 representing thirty-five percent (35%)
or more of the combined voting power of the Company's then outstanding
securities, or (ii) the Company shall cease to be a publicly owned corporation,
as defined in the Exchange Act.
13. DEFINITION OF CHANGE OF CONTROL OF THE BANK: A "Change of Control"
of the Bank shall mean any Change of Control of the Company, or any change or
series of changes in circumstances which result in the Company ceasing to own,
control, and vote an absolute majority of the voting securities of the Bank.
14. TERMINATION BY COMPANY OR BANK AFTER CHANGE IN CONTROL: If a Change
of Control of the Company or a Change of Control of the Bank shall have
occurred, this Agreement shall continue in full force and effect. If the
Executive's Employment is terminated by the Company or the Bank within twelve
(12) months after a Change of Control of the Company, as defined in Section 12
above, or a Change of Control of the Bank, as defined in Section 13 above, or in
Contemplation of a Change of Control of either, as defined below, Executive
shall be entitled to be paid an amount equal to two and ninety-nine hundredths
(2.99) times the sum of Executive's annual base cash compensation plus the
annual value of Executive's participation in all Benefit Programs in effect at
the time of such termination. At Executive's option, the sums payable pursuant
to this Section will be paid in full in a lump sum and without discount within
thirty (30) days of the termination of Executive's employment, or in equal
monthly installments over twelve (12) months. Any termination of Executive's
employment hereunder during any period of time when the Board of Directors of
the Company has formed an intent to offer the Bank for sale or to promote an
acquisition of or merger of the Company or the Bank, or when the Company has
knowledge that any person(s), entity or concern has taken steps reasonably
calculated to effect a Change of Control of the Company shall constitute a
termination of Executive's employment "In Contemplation of a Change of Control".
The period of Contemplation of Change of Control shall continue until the Board
of Directors of the Company no longer intends to promote an acquisition of or
merger of the
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Company or the Bank, or until in the opinion of the Company's Board of
Directors, the person(s), concern or entity has abandoned or terminated its
efforts to effect a Change of Control of the Company, as applicable. Any good
faith determination by the Company's Board of Directors that Board no longer has
such an intent, or that the person(s), concern or entity has abandoned or
terminated its efforts to effect a Change of Control of the Company shall be
conclusive and binding on the Executive. Such determination shall be promptly
communicated to the Executive in writing by the Chairman of the Compensation
Committee or Vice Chairman of the Board of the Company. Notwithstanding the
foregoing, any termination of the Executive by the Company or by the Bank within
ninety (90) days prior to a Change of Control of the Company shall be
conclusively presumed to have been in Contemplation of Change of Control.
15. TERMINATION BY EXECUTIVE FOR GOOD REASON; During the term of
Executive's employment hereunder, the Executive may terminate his employment
with both the Company and the Bank if the Executive has Good Reason, as defined
below. Termination by the Executive of Executive's employment with either entity
shall be deemed termination with both. For purposes of this Agreement, "Good
Reason" shall mean:
(i) The assignment of duties to the Executive by the Company
or the Bank which (1) are significantly different from the Executive's duties
immediately prior to the Change of Control, or (2) result in the Executive
having significantly less authority and/or responsibility than Executive had as
an executive officer of the Company or the Bank prior to the Change of Control,
without the express written consent of Executive;
(ii) The removal of the Executive from or any failure to
re-elect Executive to the positions set forth in Section 3 above, except in
connection with a termination of his employment by the Company or the Bank for
Cause or Executive's resignation other than for Good Reason.
(iii) A reduction of the Executive's base salary as in effect
on the date of the Change of Control, unless the reduction in the Executive's
salary is waived in writing by the Executive;
(iv) The failure of the Company and the Bank collectively to
provide the Executive with substantially the same fringe benefits (including
paid vacations) that were provided to Executive immediately prior to the Change
of Control, or with a package of fringe benefits that, though one or more of
such benefits may vary from those in effect immediately prior to such Change of
Control, is substantially comparable in all material respects to such fringe
benefits taken as a whole; or
(v) Requiring the Executive to perform a significant part of
Executive's duties in locations more than one hundred (100) miles from
Nashville, Tennessee.
Further, and notwithstanding any other provision of this Agreement, the
Executive may terminate his employment without Good Reason at any time within
ninety (90) days after a Change of Control shall have occurred.
16. PAYMENTS ON TERMINATION: Upon termination of Executive's employment
by the Company or the Bank, the Company and the Bank shall have the following
payment obligations to Executive:
(a) If the Executive's Employment is terminated due to illness of
the Executive, the provisions of Section 6 shall apply.
(b) If the Executive's Employment is terminated due to the death of
the Executive, the provisions of Section 7 shall apply.
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(c) If the Executive's Employment is terminated by the Company other
than for Cause, and not In Contemplation of a Change of Control of the Company
or the Bank or within twelve months after a Change of Control of the Company or
the Bank, the provisions of Section 8 shall apply, and therefore the payment
provisions of Section 9 apply.
(d) If the Executive's Employment is terminated by the Bank other
than for Cause, and not In Contemplation of a Change of Control of the Company
or the Bank or within twelve months after a Change of Control of the Company or
the Bank, the provisions of Section 9 shall apply.
(e) If the Executive's Employment is terminated by the Company for
Cause, or by the Bank for Cause, the provisions of Section 10 shall apply.
(f) If the Executive's Employment is terminated by the Executive as
a result of a breach of the agreement by the Company or the Bank, the provisions
of Section 3 apply, and therefore the payment provisions of Section 9 apply.
(g) In the event of a Voluntary Termination of Executive's
Employment as defined in Section 11, the provisions of Section 11 apply.
(h) If the Executive's Employment is terminated by the Company or
the Bank within twelve (12) months after a Change of Control of the Company, as
defined in Section 12 above, or a Change of Control of the Bank, as defined in
Section 13 above, or in Contemplation of a Change of Control of either, as
defined in Section 14, the provisions of Section 14 shall apply.
(i) If the Executive's Employment is terminated by the Executive for
Good Reason, as defined in Section 15 above, the Executive's employment with the
Company and with the Bank shall be deemed to have been terminated without Cause
by the Company and by the Bank at the time of such termination by Executive for
Good Reason. If such termination is during a period of Contemplation of Change
of Control, or within twelve (12) months after a Change of Control, the
provisions of Section 14 shall apply.
(j) Termination of Executive's Employment by the Company or by the
Bank or by the Executive shall be communicated by written Notice of Termination
to the other parties hereto. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific termination
provision(s) in this Agreement relied upon and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
employment under the provision so indicated.
17. CONFIDENTIALITY: In the course of the Executive's employment, the
Company and the Bank may disclose or make known to the Executive, and the
Executive may be given access to or may become acquainted with, certain
information, including but not limited to confidential information which relates
to or is useful in the businesses of the Company and the Bank and which is not
available from public records or other generally available sources
(collectively, "Confidential Information"), and which the Company or the Bank
consider proprietary and desire to maintain confidential. During the term of
this Agreement and at all times thereafter, the Executive shall not in any
manner, either directly or indirectly, divulge, disclose or communicate to any
person or firm, except to legal counsel for the Company or the Bank or otherwise
to or for the benefit of the Company or the Bank as directed by the Company or
the Bank, and except to the Executive's legal counsel in connection with the
resolution of any dispute between the Executive and the Company or the Bank
under this Agreement, any of the Confidential Information which Executive may
have acquired in the course of or as an incident to Executive's employment by
the Company or the Bank, the parties agreeing that such Confidential Information
affects the successful and effective conduct of the business and their goodwill
of the Company and the Bank, and that any material breach of the terms of this
Section 17 is a material breach of this Agreement.
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18. COVENANT NOT TO COMPETE. During the Term of this Agreement and, if
Executive terminates Executive's employment in a Voluntary Termination or for
Good Reason, or if the Company or the Bank terminate Executive's employment in
Contemplation of a Change of Control, or within twelve (12) months after a
Change of Control, or for Cause, for the period of twelve (12) months following
the termination of Executive's employment with the Company or the Bank,
Executive agrees that Executive will not directly or indirectly own, become
interested in, or become involved in any manner whatsoever in any business which
is similar or competitive with any aspect of the business of the Company or the
Bank as conducted at the time of such termination. Without limiting the
foregoing, Executive agrees during the applicable period not to engage in the
Banking or Leasing businesses, whether as an owner, partner, director, officer,
employee, consultant, stockholder, agent, salesman, or in any other capacity for
any person, partnership, firm, corporation or other entity without the express
written consent of the President of the Company. Executive specifically
acknowledges and agrees that the foregoing restriction on competition with the
Company and the Bank will not prevent Executive from obtaining gainful
employment following termination of Executive's employment with the Company and
the Bank, and is a reasonable restriction upon Executive's ability to compete
with the Company and the Bank, given the economic benefits afforded to Executive
under this Agreement.
19. NO ENTICEMENT OF EMPLOYEES. Executive agrees that Executive will
not, directly or indirectly, entice or induce, or attempt to entice or induce
any employee of the Company or Bank to leave the employ of the Company or the
Bank during the period covered by the Non-Competition provisions of Section 18
above.
20. NO SOLICITATION. Executive will not, directly or indirectly,
solicit, entice or induce, or attempt to entice or induce any customer or user
of the products or services of the Bank or the Company during the period covered
by the Non-Competition provisions of Section 18 above.
21. REMEDIES. Executive acknowledges and agrees that the breach or
threatened breach of any of the provisions of Sections 17, 18, 19 and 20 of this
Agreement will cause irreparable harm to the Company and the Bank, and cannot be
adequately compensated by the payment of damages. Accordingly, Executive
covenants and agrees that the Company and the Bank, in addition to any other
rights or remedies which they may have, will be entitled to such equitable and
injunctive relief as may be available from any court of competent jurisdiction
to restrain Executive from breaching or threatening to breach any of the
provisions of this Sections 17, 18, 19 and 20, without posting bond or other
surety. Such right to obtain injunctive relief may be exercised at the option of
the Company or the Bank in addition to, concurrently with, prior to, after, or
in lieu of the exercise of any other rights or remedies which the Company or the
Bank may have as a result of any such breach or threatened breach. In addition
to all other remedies, in the event of the breach or threatened breach of any of
the provisions of Sections 17, 18, 19 or 20 of this Agreement, the Company and
Bank shall be relieved of any obligation to continue payments to the Executive
pursuant to the provisions of this agreement.
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10
22. NOTICES: For the purposes of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
Community Financial Group, Inc.
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of Compensation Committee
with a copy to:
Boult, Cummings, Xxxxxxx & Xxxxx, PLC
000 Xxxxx Xxxxxx, Xxxxx 0000
P. O. Xxx 000000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Bank:
The Bank of Nashville
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of Compensation Committee
with a copy to:
Boult, Cummings, Xxxxxxx & Xxxxx, PLC
000 Xxxxx Xxxxxx, Xxxxx 0000
P. O. Xxx 000000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
If to the Executive:
Xxxx X. Xxxxxxxxx, Xx.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to:
Xxxxxxx & XxXxxxxx, P.C.
Washington Square
000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: J. Xxxxxxxx XxXxxxxx, Esq.
or at such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
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11
23. MODIFICATION; WAIVERS; APPLICABLE LAW: No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing, signed by the Executive, and on behalf of
the Company by such officer as may be specifically designated by the Board of
Directors of the Company after approval of the modification by the Board of
Directors, and on behalf of the Bank by such officer as may be specifically
designated by the Board of Directors of the Bank after approval of the
modification by the Board of Directors. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Tennessee.
24. INVALIDITY; ENFORCEABILITY: The invalidity or unenforceability of
any provisions 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. Any provision in this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating or affecting
the remaining provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
25. ASSIGNMENTS: This Agreement is personal to the Executive, who may
not assign his obligations hereunder.
26. SUCCESSOR RIGHTS: This Agreement shall inure to the benefit of and
be binding upon the Company, its successors and assigns, the Bank, its
successors and assigns and upon the Executive, and his personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees. If the Executive should die while any amounts would still be payable
to him hereunder, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to his devisee, legatee or
other designee or, if there is no such designee, to his estate.
27. HEADINGS: Descriptive headings contained in this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any provision hereof.
28. ARBITRATION: Any dispute, controversy or claim arising under or in
connection with this Agreement shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators, in Nashville, Tennessee, 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. Unless otherwise provided in the rules of the American Arbitration
Association, the arbitrators shall, in their award, allocate between the parties
the costs of arbitration, which shall include reasonable attorneys' fees and
expenses of the parties, as well as the arbitrator's fees and expenses, in such
proportions as the arbitrators deem just.
29. ENTIRE AGREEMENT: This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and supersedes or amends all other agreements,
negotiations, understandings and representations (if any) made by and between
the parties hereto; provided, however, that nothing herein shall affect in any
way agreements granting or evidencing the Executive's options to acquire shares
of the Company.
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12
30. REGULATORY AND OTHER PROCEEDINGS: The provisions of this Section 30
shall control as to continuing rights and obligations under this Agreement,
notwithstanding any other provision of this Agreement, for as long as they are
required to be included in employment contracts between an institution insured
by the FDIC and its officers and as long as the Bank is such an insured
institution.
(a) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the affairs of the Bank or the Company by a
Notice served under applicable Federal or State statutes or regulations, the
Bank's obligations under this 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 and the Company shall pay the Executive all of the
compensation withheld while their obligations hereunder were suspended and
reinstate their obligations which were suspended.
(b) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the affairs of the Bank or the Company by an
order issued under applicable Federal or State statutes or regulations, all
obligations of the Company and the Bank under this Agreement shall terminate as
of the effective date of the order, provided that vested rights of the
contracting parties shall not be affected.
(c) If the Company or the Bank become insolvent or taken over by
regulatory entities, all obligations under this Agreement shall terminate as of
the date of default, provided that this paragraph shall not affect any vested
rights of the contracting parties.
(d) All obligations under this Agreement may be terminated, except
to the extent determined that continuation thereof is necessary for the
continued operation of the Company or the Bank, by the FDIC at the time the FDIC
enters into an agreement to provide assistance to or on behalf of the Bank or
approves a supervisory merger to resolve problems related to operation of the
Bank, provided that any rights of the parties that have already vested shall not
be affected by such action.
31. SURVIVAL. This agreement shall remain in effect notwithstanding the
termination of Executive's employment hereunder, and in any case, the provisions
of Sections 18, 19, and 20 shall survive any termination of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
Executive:
/s/ Xxxx X. Xxxxxxxxx, Xx.
-----------------------------------------
Xxxx X. Xxxxxxxxx, Xx.
Community Financial Group, Inc.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, Compensation Committee
of the Board of Directors
The Bank of Nashville
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, Compensation Committee
of the Board of Directors
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