EXHIBIT 10.5
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement (the Agreement) is made
effective as of May 15, 2002, by and between COMMUNITY FIRST BANK AND TRUST (the
Bank), Columbia, Tennessee, and Xxxx X. Xxxxxx (the Executive).
WITNESSETH:
WHEREAS, the Bank wishes to assure itself of the services of Executive
for the period provided in this Agreement;
WHEREAS, the Executive is willing to serve in the employment of the
Bank on a full-time basis for said period; and
WHEREAS, the Agreement modifies, amends and restates that certain
Employment Agreement dated May 17, 1999 between Executive and Bank.
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 Chief Executive Officer of the Bank and of any affiliate or parent
corporation thereof.
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
twenty-four (24) calendar full months thereafter. Commencing on the first
anniversary date, which is defined as the last day of the 24-month term, the
Agreement will renew automatically for an additional twenty-four (24) months
provided that notice to the other party of an intent to terminate has not been
delivered not more than one hundred eighty (180) but not less than ninety (90)
days prior to the renewal date or unless the Agreement is otherwise terminated
or amended by mutual agreement. Unless amended by the parties hereto in writing,
the term of this Agreement shall continue in this fashion at successive
twenty-four (24) month intervals.
(b) During the period of his employment hereunder, except for
periods of absence occasioned by illness, vacation periods, and leaves of
absence, Executive shall devote substantially all his business time, attention,
skill, and efforts to the faithful performance of his duties hereunder I A.
provided, however, that, 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 will not 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 I and 2. The Bank shall
pay Executive as compensation a salary of __________________ Thousand Dollars
($112,750) 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 (1) year from the date of
this Agreement. Such review shall be conducted by a Committee designated by the
Board, and the Board may increase (but not decrease) Executive's Base Salary. In
addition to the Base Salary provided in this Section 3(a), the Bank shall
provide to Executive at no additional cost to Executive all such other benefits
as are provided to regular full-time employees of the Bank.
(b) Executive will be entitled to participate in or receive
benefits under any employee benefit plans including, but not limited to, stock
options, retirement plans, supplemental retirement plans, pension plans,
profit-sharing plans, health-and-accident plans, 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 the Executive under
any such plan or arrangement will be deemed to be in lieu of other compensation
to which the Executive is entitled under this Agreement, except as provided
under Section 5(e).
(c) Executive will be reimbursed for reasonable travel and
entertainment expenses.
(d) Executive will have access to the Bank's corporate membership
in the Graymere Country Club in Columbia, Tennessee. The Bank will pay the
monthly country club dues, the capital improvement fund fee and applicable taxes
as well as the country clubs per month standard meal allowance charge and
business-related entertainment at the country club. Executive will reimburse the
Bank for any personal expenditures at the country club not related to the
business of the Bank. Executive will maintain accurate records segregating
business and personal expenditures at the country club.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein
defined) during the 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 of Executive's full-time employment hereunder due to expiration of
this Agreement pursuant to Paragraph 2(a); (ii) the termination by the Bank of
Executive's full-time employment hereunder for any reason other than a Change in
Control as defined in Paragraph 5(a) hereof; disability, as defined in Paragraph
6(a) hereof; death; retirement, as defined in Section 7 hereof; for Cause, as
defined in Section 8 hereof; or termination by the Executive except as set for
in (iii) hereof; (iii) Executive's resignation from the Bank's employment, upon
(A), unless consented to by the 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 forty (40)
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 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 to the Bank 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 lump sum payment equal to twenty-four (24) months Base
Salary.
(c) Upon the occurrence of an Event of Termination, the Bank will
cause life, medical, dental and disability coverage substantially identical to
the coverage maintained by the Bank for Executive prior to his termination to be
continued for a period of twenty-four (24) months at the Bank's expense. A COBRA
notice will issue upon the date of termination. Any COBRA mandated coverage
extensions beyond the first twenty-four (24) months will be at the option of the
Executive and paid for by him as provided by law unless he has secured other
coverage from another source extinguishing his coverage rights.
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 Bank. For purposes of this
Agreement, a Change in Control of the Bank shall be deemed to occur if and when:
(i) there occurs an acquisition in one or more
transactions of at least fifteen percent (15%) but less than
twenty-five percent (25%) of the Common Stock by any Person, or by two
or more Persons acting as a group (excluding officers and directors of
the Bank), and the adoption by the Board of Directors or a resolution
declaring that a change in control of the Bank has occurred; or
(ii) any person or entity, including a "group" as defined
in Section 13 (d) (3) of the Securities Exchange Act of 1934, other
than the Bank or a wholly-owned subsidiary thereof or any employee
benefit plan of the Bank or any of its subsidiaries, becomes the
beneficial owner of the Bank I s securities having 25 % or more of the
combined voting power of the then outstanding securities if the Bank
that may be cast for the election of directors of the Bank (other than
as a result of an issuance of securities initiated by the Bank in the
ordinary course of business); or
(iii) as the result of, or in connection with, any cash
tender or exchange offer, merger or other business combination, sale of
substantially all of the assets or contested election, or any
combination of the foregoing transactions less than a majority of the
combined voting power of the then-outstanding securities of the Bank or
any successor corporation or entity entitled to vote generally in the
election of the directors of the Bank or such other corporation or
entity after such transaction are held in the aggregate by the holders
of the Bank's securities entitled to vote generally in the election of
directors of the Bank immediately prior to such transaction; or
(iv) during any period of two consecutive years,
individuals who at the beginning of any such period constitute the
Board of Directors of the Bank cease for any reason to constitute at
least a majority thereof, unless the election, or the nomination for
election by the Bank's shareholders, of each director of the Bank first
elected during such period was approved by a vote of at least
two-thirds of the directors of the Bank then still in office who were
directors of the Bank at the beginning of any such period.
(b) If any of the events described in Paragraph 5(a) hereof
constituting a Change in Control have occurred or if the Board of the Bank
otherwise has determined that a Change in Control has occurred, Executive shall
be entitled to the benefits provided in Paragraphs (c), (d) and (e) of this
Section 5 upon his subsequent voluntary termination of employment at any time
during the term of this Agreement, unless such termination is because of his
death, retirement as provided in Section 7, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by the
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 two (2) times the Executive's base amount, currently in effect, within the
meaning of , 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 the
Executive's Date of Termination.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, 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 the 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 twenty-four (24) months.
(e) Upon the occurrence of a Change in Control the Executive shall
be entitled to receive benefits due him under, or contributed by the Bank on his
behalf, pursuant to any retirement, incentive, profit-sharing, bonus,
performance, disability or other employee benefit plan maintained by the Bank on
the Executive's behalf to the extent that such benefits are not otherwise paid
to the 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 the
Executive under this Section would be deemed to include an excess parachute
payment under 1280G of the Code, such payments or benefits shall be payable or
provided to Executive in equal monthly installments 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 two (2) times the Executive's base amount
currently in effect, under '280G(b)(3) of the Code.
6. TERMINATION FOR DISABILITY.
(a) If the Executive shall become permanently and totally disabled
as defined in the Bank's then current disability plan (or, if no such plan is
then in effect, if the Executive is permanently and totally disabled within the
meaning of Section 22(e)(3) of the Code as determined by a physician reasonably
satisfactory to both the Board and Executive), the Bank may terminate
Executive's employment for Disability.
(b) Upon the Executive's termination of employment for Disability,
the Bank will pay Executive, as disability pay, a bi-weekly payment equal to
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 continue through the earlier
of (i) the expiration of this Agreement pursuant to Paragraph 2(a); (ii)
Executive's full-time employment by another employer; (iii) Executive retiring
under the Bank's retirement plan; or (iv) Executive's death. The disability pay
shall be reduced by the any amount paid to the Executive under any plan of the
Bank providing disability benefits to the 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 expiration of this Agreement
pursuant to Paragraph 2(a).; (ii) Executive's full-time employment by another
employer; (iii) Executive retiring under the Bank's retirement plan; or (iv)
Executive's death. (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.
Termination by the Bank of Executive based on Retirement shall mean
normal retirement 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 and other plans to which Executive is a party. Upon the death
of the Executive during the term of this Agreement, the Bank shall pay to
Executive's estate the compensation due to the Executive through the last day of
the calendar month in which his death occurred.
8. TERMINATION BY THE EXECUTIVE.
The Executive may terminate his employment hereunder (i) at any time if
his health should become impaired to an extent that makes continued performance
of his duties hereunder hazardous to his physical or mental health, or (ii) upon
sixty (60) days notice for any other reason.
9. TERMINATION FOR CAUSE.
For purposes of this Agreement, Termination for Cause shall include
termination because of the Executive's personal dishonesty, willful misconduct,
breach of fiduciary duty involving personal profit, intentional failure to
perform stated duties, willful violation of any law, rule, or regulation which
negatively impacts the Bank (other than traffic violations or similar offenses)
or final cease-and-desist order, written instructions from a regulatory
authority of the Bank requiring the termination of Executive, or material breach
of any provision of this Agreement. For purposes of this Section, the term
willful is defined to include any act or omission which demonstrates an
intentional or reckless disregard for the duties and responsibilities owed to
the business of the Bank by the Executive.
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
two-thirds (b) of the members of the Board at a meeting of the Board called and
held for that purpose, finding that in the good faith opinion of the Board,
Executive was guilty of conduct justifying termination for Cause and specifying
the reasons thereof. The Executive shall not have the right to
receive compensation or other benefits for any period after termination for
Cause. Any unvested stock options granted to Executive under any stock option
plan or any unvested awards granted under any stock benefit plan of the Bank, or
any subsidiary or affiliate thereof, shall become null and void effective upon
Executive's Termination for Cause pursuant to Section 9 hereof, and shall not be
exercisable by Executive at any time subsequent to such Termination for Cause.
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 (3 0) day period); and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
(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.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue him
as a participant in all compensation, benefit and insurance plans in which he
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section are in addition to all other amounts due under this Agreement and shall
not be offset against or reduce any other amounts due under this Agreement.
11. NON-COMPETITION.
(a) Upon any termination of Executive's employment hereunder for
any reason except when a Change of Control has occurred, including, but not
limited to, expiration of this Agreement, Executive agrees not to compete with
Bank for a period of twenty-four (24) months following such termination within
Maury County, Tennessee and all counties contiguous thereto. Additionally,
during the twenty-four (24) months, Executive shall not call upon, solicit,
service or interfere with or divert in any way any customers served by the Bank
at the Date of Termination. The Bank agrees that Executive may work for an
entity that competes with the depository, lending or other business activities
of the Bank as long as the Executive works in an office that is not in Maury
County, Tennessee or a county contiguous thereto and does not advise, consult or
have any direct involvement with the entity's activities within Maury County,
Tennessee or a county contiguous thereto or with the commercial loan customers
served by the Bank at the Date of Termination.
The parties hereto, recognizing that irreparable injury will result to
the Bank, its business and property in the event of Executive's breach of this
Subsection I 0(a) agree that in the event of any such breach by Executive, the
Bank 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 with Bank, 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 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 from
pursuing any other remedies available to the Bank 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 the 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, or 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.
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 the 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; SUCCESSORS AND ASSIGNS.
(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 and the Bank 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 substantive laws and procedural
provisions 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. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by the Bank or the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the prevailing party in such judgment,
arbitration or settlement.
20. INDEMNIFICATION.
The Bank shall provide Executive with coverage under a standard
directors and officers liability insurance policy at its expense, or in lieu
thereof, shall indemnify Executive to the fullest extent
permitted under applicable Tennessee and federal law and the Articles of the
Association 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 director 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.
21. SUCCESSOR TO THE BANK.
The Bank 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, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and their seal to be affixed hereunto by a duly authorized officer or
director, and Executive has signed this Agreement, all as of the 15 day of May,
2002.
COMMUNITY FIRST BANK & TRUST
BY: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, MD, Chairman
BY: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
