EXHIBIT NO.10.(ii)
EMPLOYMENT AGREEMENT
THIS AGREEMENT is executed on the 19th day of November, 2003, but
effective as of the 1st day of January, 2003 ("Effective Date"), by and between
XXXXXX COUNTY BANCSHARES, INC. AND XXXXXX COUNTY BANK (referred to herein
collectively as the "Company") and XXXXXXX X. XXXXXX (the "Employee").
INTRODUCTION
The Board of Directors of Company (the "Board") has determined that it
is in the best interests of Company to retain Employee's services and to
reinforce and encourage the continued attention and dedication of Employee to
his assigned duties, without distraction in potentially disturbing circumstances
arising from the possibility of a change in control of Company or the assertion
of claims and actions against employees.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, Company and Employee hereby agree as follows:
1. Employment. Upon the terms and subject to the conditions contained in
this Agreement, Employee agrees to provide full-time services for Company during
the term of this Agreement. Employee agrees to devote his best efforts to the
business of Company, and shall perform his duties in a diligent, trustworthy,
and business-like manner, all for the purpose of advancing the business of
Company. Notwithstanding the above, Employee may engage in other business
interests or investments which do not materially prevent Employee from
performing his contemplated services hereunder on behalf of Company.
2. Duties. Employee shall hold the titles of PRESIDENT & CHIEF OPERATING
OFFICER ("COO") of Company and its subsidiary, XXXXXX COUNTY BANK, and shall
report directly to the Chief Executive Officer of Company. Employee shall render
such administrative and management services for Company as are currently
rendered and as are currently performed by persons situated in a similar
executive capacity. Employee shall also promote, by entertainment or otherwise,
as and to the extent permitted by law, the business of Company. Employee's
duties may, from time to time, be changed or modified at the discretion of the
Board, upon notice to Employee. Provided, however, such change or modification
shall not constitute a demotion or result in the loss or diminution of
Employee's position, title, or compensation under this Agreement without his
prior written consent.
3. Employment Term. Subject to the terms and conditions hereof, Company
agrees to employ, and Employee hereby accepts Employment, for the 3 years
commencing January 1, 2003 (the "Effective Date"). Additionally, unless either
party notifies the other of a termination at least ninety (90) days prior to the
end of the then current term, the term of this Agreement and Employee's
employment shall automatically renew on the same terms and conditions upon the
expiration date of the initial term and each renewal term on a calendar year to
year basis.
4. Compensation and Benefits.
(a) Base Salary. As of the Effective Date of this Agreement,
Company agrees to pay Employee during the term of this Agreement an
initial base salary at the rate of $160,000 (ONE HUNDRED SIXTY THOUSAND
DOLLARS) per annum (the "Base Salary"), payable in accordance with
Company's normal payroll practices with such payroll deductions and
withholdings as are required by law. Employee's Base Salary will also
be reviewed at least annually by the Board, and may, in the Board's
sole discretion, be increased (but not reduced) thereafter on the
anniversary of the Effective Date.
(b) Annual Incentive Payment. In addition to other compensation to
be paid under this SECTION 4, each year during the term of this
Agreement Employee shall be eligible to receive an annual incentive
payment (the "Annual Incentive Payment"). The amount of the Annual
Incentive Payment actually awarded and paid to Employee each year will
be determined by the Board in its sole discretion based on performance
criteria to be adopted. Any payments made under this section shall be
paid as soon as is practicable following the close of Company's
financial statements for the preceding year.
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EXHIBIT NO.10.(ii)
(c) Stock Options. In addition to other compensation to be paid
under this SECTION 4, Employee shall have the right to participate in
any existing stock options plans for which he is eligible and any
future stock option plans adopted in accordance with law by Company for
which he is eligible under the terms of plan.
(d) Board Fees. In addition to other compensation to be paid under
this SECTION 4, Company shall pay to Employee fees for services
provided as a member of the Board at the same level as outside board
members.
(e) Life Insurance. Company shall provide life insurance coverage
on the life of Employee in an amount not less than $500,000.00.
Employee understands a portion of this may be taxable.
(f) Vacation. Employee shall be entitled to 20 days of paid
vacation, plus all scheduled bank holidays, during each full year of
his employment hereunder in accordance with the general terms of the
vacation policy adopted by Company. In addition, upon any termination
of Employee's employment under SECTION 5, except for termination for
cause (as defined herein), Employee will be paid any accrued vacation
that has not been taken through the date of the termination of his
employment.
(g) Reimbursement of Expenses. Company shall reimburse Employee in
accordance with Company's expense reimbursement policies for all
reasonable, ordinary and necessary business expenses incurred by
Employee in the course of his duties conducted on behalf of Company. In
addition, Company shall pay Employee's annual dues at a local country
club, and expenses related to Employee's use of such country club for
matters related to the business of Company. Company shall also
reimburse Employee's reasonable expenses for professional development
courses.
(h) Employee Benefits. Employee shall be entitled to participate
in any employee benefit plans now existing or established hereafter
generally available to employees of Company or senior or executive
officers of Company, and to all normal perquisites provided to senior
or executive officers of Company, provided Employee is otherwise
qualified to participate in such plans or programs. As part of its
normal course of business, Company may amend and/or terminate employee
benefits, except for any benefit that is vested in Employee.
(i) Benefits Not in Lieu of Compensation. No benefit or perquisite
provided to Employee shall be deemed to be in lieu of base salary,
bonus, or other compensation, provided that the reporting of any
benefits shall be consistent with IRS regulations.
5. At-will Employment and Termination. Employment with Company will be
at-will and may be terminated at any time by either party with or without cause,
for any reason, including the reasons set forth in this SECTION 5, or for no
reason at all, but any such termination shall be subject to the terms and
conditions of this Agreement.
(a) Cause. Notwithstanding any provision of this Agreement to the
contrary, Company shall not pay any benefit under this
Agreement if Company determines that Employee committed one of
the following acts while in the employment of Company prior to
the Normal Retirement date:
(i) Gross negligence or gross neglect of duties;
(ii) Commission of a felony or of a misdemeanor involving
moral turpitude; or
(iii) Fraud, disloyalty, dishonesty or willful violation of
any law or significant Company policy committed in
connection with Employee's employment and resulting
in an adverse effect on Company.
(b) Death. This Agreement shall be terminated automatically upon
the death of Employee. Within ten (10) business days of termination,
Company shall pay to Employee's beneficiary a sum equal to one month of
Base Salary at the then-effective rate paid to Employee, plus an amount
of Annual Incentive as determined under SECTION 4(b).
(i) Employee shall designate a beneficiary by filing a
written designation with Company. Employee may revoke or
modify the designation at any time by filing a new
designation. However, designations will only be effective if
signed by Employee and received by Company
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EXHIBIT NO.10.(ii)
during Employee's lifetime. Employee's beneficiary designation
shall be deemed automatically revoked if the beneficiary
predeceases Employee, or if Employee names a spouse as
beneficiary and the marriage is subsequently dissolved. If
Employee dies without a valid beneficiary designation, all
payments shall be made to Employee's estate.
(ii) If a benefit is payable to a minor, to a person
declared incompetent, or to a person incapable of handling the
disposition of his or her property, Company may pay such
benefit to the guardian, legal representative or person having
the care or custody of such minor, incapacitated person or
incapable person. Company may require proof of incompetence,
minority or guardianship as it may deem appropriate prior to
distribution of the benefit. Such distribution shall
completely discharge Company from all liability with respect
to such benefit.
(c) Disability. Company may terminate Employee's employment for
Disability as defined under Company's long-term disability policy. If
Company does not have a long-term disability policy, disability shall
be defined as Employee's inability through physical or mental illness
or other cause to perform the essential functions of Employee's
position, with or without reasonable accommodation, in the opinion of
Company, for the continuous period of six (6) months. Within ten (10)
business days of termination, Company shall pay to Employee a sum equal
to one month of Base Salary at the then-effective rate paid to
Employee, plus an amount of Annual Incentive as determined under
SECTION 4(b).
(d) Voluntary Resignation or Termination for Cause. If Employee
shall voluntarily terminate his employment for any reason, or if
Company shall discharge Employee for Cause, as defined in Section 5(a),
this Agreement shall terminate immediately and Company shall have no
further obligation to make any payment under this Agreement except for
the prorata portion of Base Salary that has been earned through the
termination date of Employee's employment, but that has not yet been
paid; provided, however, that with respect to any stock options,
restricted stock, incentive plans, deferred compensation arrangements,
or other plans or programs in which Employee is participating at the
time of termination of his employment, Employee's rights and benefits
under each such plan shall be determined in accordance with the terms,
conditions, and limitations of the plan and any separate agreement
executed by Employee which may then be in effect. Termination for Cause
shall only occur after the Board, in its sole and absolute discretion,
has made a full and thorough determination of "Cause," which shall be
noticed to Employee in writing within three (3) business days of such
determination.
(e) Involuntary Termination Without Cause. If during the term of
this Agreement, Employee's employment is terminated by Company without
Cause other than through a voluntary resignation by Employee, the
following shall apply:
(i) Base Salary. Within ten (10) business days of
termination, Company shall pay Employee the accrued Based
Salary through the date of termination and an additional lump
sum amount equal to twelve (12) months of Employee's Base
Salary under this agreement in effect at the time of
termination.
(ii) Annual Incentive. In addition to Base Salary as
described above in Section 5(e)(i), Company shall also pay to
Employee in a lump sum an amount not less than the average of
the Annual Incentive Payments Employee received under this
Agreement for the two years prior to termination.
If such termination occurs within eighteen (18) months
following, or six (6) months prior to, a Change in Control,
then the benefit under SECTION 6 shall apply.
6. Termination After Change in Control Benefit. If within eighteen (18)
months after, or six (6) months prior to, a Change in Control of Company as
defined in SECTION 6(a), Company terminates Employee's employment for reasons
other than those under SECTION 5(a) herein, or Employee voluntarily resigns
following a demotion in position, a reduction in title, and/or a significant
reduction in the duties which he is to perform for Company, then Company shall
pay to Employee a benefit as defined in SECTION 6(b).
(a) Change in Control. The term Change in Control shall have the
following meaning:
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EXHIBIT NO.10.(ii)
(i) Any person or entity or group of affiliated persons
or entities (other than Company) becomes a beneficial owner,
directly or indirectly, of 20% or more of Company's voting
securities or all or substantially all of the assets of
Company;
(ii) Company enters into a definitive agreement which
contemplates the merger, consolidation or combination of
Company with an unaffiliated entity in which either or both of
the following is to occur: (i) the Board of Directors of
Company, as applicable, immediately prior to such merger,
consolidation or combination will constitute less than a
majority of the board of directors of the surviving, new or
combined entity; or (ii) less than 75% of the outstanding
voting securities of the surviving, new or combined entity
will be beneficially owned by the stock holders of Company
immediately prior to such merger, consolidation or
combination; provided, however, that if any definitive
agreement to merge, consolidate or combine is terminated
without consummation of the transaction, then no Change in
Control shall be deemed to have occurred pursuant to this
paragraph;
(iii) Company enters into a definitive agreement which
contemplates the transfer of all or substantially all of
Company's assets, other than to a wholly-owned Subsidiary of
Company; provided, however, that if any definitive agreement
to transfer assets is terminated without consummation of the
transfer, then no Change in Control shall be deemed to have
occurred pursuant to this paragraph; or
(iv) A majority of the members of the Board of Directors
of Company shall be persons who: (i) were not members of such
Board on the date this plan is approved by the stock holders
of Company ("current members"); and (ii) were not nominated by
a vote of such Board which included the affirmative vote of a
majority of the current members on such Board at the time of
their nomination ("future designees") and (iii) were not
nominated by a vote of such Board which included the
affirmative vote of a majority of the current members and
future designees, taken as a group, on such Board at the time
of their nomination.
(b) Amount. Upon a termination of Employee's employment under the
circumstances described in this SECTION 6, and subject to the
provisions of SECTIONS 9 AND 10, Employee will receive a Change in
Control Benefit equal to three (3) times Employee's Current Annual
Compensation, which is defined as follows as of the date of the Change
in Control:
Employee's current annualized Base Salary amount being paid by
Company as of the time of Employee's termination plus the
total amount of the Annual Incentive paid to Employee in the
twelve month period immediately preceding his termination.
This definition covers amounts includible in compensation,
i.e., the Base Salary and cash Annual Incentive prior to any
cash or deferred arrangements.
Company shall also pay to Employee any amounts due under SECTION 4(c)
according with the terms, conditions and limitations of the plans and
any separate agreements under SECTION 4(c) without regard to "vesting"
thereunder.
(c) Consideration of Benefit. As consideration for the benefit
paid in this SECTION 6, at the request of the successors as described
in SECTION 15(a), Employee will work with the new organization for a
period of at least six (6) months at his Base Salary, which payments
shall be in addition to all sums due Employee pursuant to Section 6(b)
of this Agreement. If Employee is requested to work with the new
organization for a period of six (6) months and fails to do so, then no
benefits will be provided to Employee.
(d) Limitation of Benefit. Notwithstanding anything to the
contrary in this Agreement, if any benefit payable under this Agreement
would create an excise tax under the excess parachute rules of Section
4999 of the Code, Company shall pay to Employee the amount of such
excise tax and all federal and state income or other taxes with respect
to any such additional amount (the "Gross-up"). If, as a result of any
Gross-up payments made to Employee, Employee incurs additional tax
liability, Company shall provide an additional Gross-up payment to
Employee to offset any such tax liability ("Double Gross-up").
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EXHIBIT NO.10.(ii)
(e) Payment of Benefit. Company shall pay the Change in Control
Benefit provided herein in a lump sum to Employee within 30 days
following a termination of Employee's employment under the
circumstances described in the first sentence of this Section 6.
7. Confidential Information. Employee recognizes and acknowledges that he
will have access to certain information of Company and that such information is
confidential and constitutes valuable, special and unique property of Company.
Employee shall not at any time, either during or subsequent to the term of this
Agreement, disclose to others, use, copy or permit to be copied, except as
directed by law or in pursuance of Employee's duties for or on behalf of
Company, its successors, assigns or nominees, any Confidential Information of
Company (regardless of whether developed by Employee), without the prior written
consent of Company.
The term "Confidential Information" with respect to any person means any secret
or confidential information or know-how and shall include, but shall not be
limited to, the plans; customers; customer specific information; customer
specific loan pricing, loan needs, and maturity dates; costs, prices, rates,
uses, and applications of products and services; customer specific deposit
information; results of investigations; studies owned or used by such person;
and all products, processes, compositions, computer programs, and servicing,
marketing or operational methods and techniques at any time used, developed,
investigated, made or sold by such person, before or during the term of this
Agreement, that are not readily available to the public or that are maintained
as confidential by such person. Employee shall maintain in confidence any
Confidential Information of third parties received as a result of Employee's
employment with Company in accordance with Company's obligations to such third
parties and the policies established by Company.
8. Delivery of Documents upon Termination. Employee shall deliver to
Company or its designee at the termination of Employee's employment all
correspondence, memoranda, notes, records, drawings, sketches, plans, customer
lists, product compositions, and other documents and all copies thereof, made,
composed or received by Employee, solely or jointly with others, that are in
Employee's possession, custody, or control at termination and that are related
in any manner to the past, present, or anticipated business or any member of
Company.
9. No Solicitation. Throughout the term of this Agreement and for a period
of twelve (12) months immediately following the later to occur of (1) the
termination of Employee's employment with Company following a Change in Control
as set forth in SECTION 6(a), or (2) termination of Employee's service to the
successor organization following a Change in Control as required by SECTION 6(c)
of this Agreement, Employee shall not directly or indirectly for the benefit of
any bank or financial institution or any company or other entity affiliated,
directly or indirectly, with another bank or financial institution other than
Company, solicit the employment or services of, hire, or assist in the hiring of
any person eligible for Company's compensation or benefit plans for senior
officers or executives.
10. No Tampering. Throughout the term of this Agreement and for a period of
twelve (12) months immediately following the later to occur of (1) the
termination of Employee's employment with Company following a Change in Control
as set forth in SECTION 6(A), or (2) termination of Employee's service to the
successor organization following a Change in Control as required by SECTION 6(c)
of this Agreement, Employee shall not directly or indirectly (a) request, induce
or attempt to influence any existing or prospective customers, vendors or
licensors of Company to curtail or cancel any business they may transact with
Company; or (b) request, induce or attempt to influence any senior or executive
employee of Company to terminate that employee's employment with Company. For
purposes of this Section 10, "prospective customers" shall mean individuals or
entities whom Company or its affiliates have contacted within the twelve (12)
months immediately preceding the termination of Employee's employment under this
Agreement.
11. Publicity and Advertising. Employee agrees that Company may use
Employee's name, picture, or likeness for any advertising, publicity, or other
business purpose at any time, during the term of the Agreement by Company and
may continue to use materials generated during the term of Employee's employment
pursuant to this Agreement for a period of six months thereafter. Employee shall
receive no additional consideration if Employee's name, picture or likeness is
so used. Employee further agrees that any negatives, prints or other material
for printing or reproduction purposes prepared in connection with the use of
Employee's name, picture or likeness by Company shall be and are the sole
property of Company.
12. Remedies. Employee acknowledges that a remedy at law for any breach or
attempted breach of Employee's obligations under SECTIONS 7 THROUGH 10 may be
inadequate, agrees that Company may be entitled to
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EXHIBIT NO.10.(ii)
specific performance and injunctive and other equitable remedies in case of any
such breach or attempted breach and further agrees to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief. Employee agrees and stipulates that if
Company can prove a violation of any one covenant, that it shall be entitled to
injunctive relief on all such covenants and that proof of one such violation is
satisfactory to show that Company will suffer immediate and irreparable harm if
injunctive relief is not granted. Company shall have the right to offset against
amounts to be paid to Employee pursuant to the terms hereof any amounts from
time to time owing by Employee to Company. The termination of Employee's
employment pursuant to this Agreement shall not be deemed to be a waiver by
Company of any breach by Employee of this Agreement or any other obligation owed
Company, and notwithstanding such a termination Employee shall be liable for all
damages attributable to such a breach.
13. Dispute Resolution. Subject to Company's right to seek injunctive
relief in court as provided in SECTION 12 of this Agreement, any dispute,
controversy or claim arising out of or in relation to or connection to this
Agreement, including without limitation any dispute as to the construction,
validity, interpretation, enforceability or breach of this Agreement, including
a claim for indemnification under SECTION 14, shall be resolved either as
provided by applicable law, or, at the option of either party, by impartial
binding arbitration. In the event that either Company or Employee demands
arbitration, Employee and Company agree that such arbitration shall be the
exclusive, final and binding forum for the ultimate resolution of such claims,
subject to any rights of appeal that either party may have under the Federal
Arbitration Act and/or under applicable state law dealing with the review of
arbitration decisions.
(a) Arbitration. Arbitration shall be heard and determined by one
arbitrator, who shall be impartial and who shall be selected by mutual
agreement of the parties; provided, however, that if the dispute
involves more than $1,000,000, then the arbitration shall be heard and
determined by three (3) arbitrators. If three (3) arbitrators are
necessary as provided above, then (i) each side shall appoint an
arbitrator of its choice within thirty (30) days of the submission of a
notice of arbitration and (ii) the party-appointed arbitrators shall in
turn appoint a presiding arbitrator of the tribunal within thirty (30)
days following the appointment of the last party-appointed arbitrator.
If any party fails or refuses to appoint an arbitrator, the arbitration
shall proceed with one (1) arbitrator.
(b) Demand for Arbitration. In the event that Employee or Company
initially elects to file suit in any court, the other party will have
60 days from the date that it is formally served with a summons and a
copy of the suit to notify the party filing the suit of the non-filing
party's demand for arbitration. In that case, the suit must be
dismissed by consent of the parties or by the court on motion, and
arbitration commenced with the arbitrators. In situations where suit
has not been filed, either Employee or Company may initiate arbitration
by serving a written demand for arbitration upon the other party. Such
a demand must be served within twelve months of the events giving rise
to the dispute. Any claim that is not timely made will be deemed
waived.
(c) Proceedings. Unless otherwise expressly agreed in writing by
the parties to the arbitration proceedings:
(i) The arbitration proceedings shall be held in the Xxxx
County, Tennessee, area, and at a site chosen by mutual
agreement of the parties. If the parties cannot reach
agreement on a location within thirty (30) days of the
appointment of the last arbitrator, then at a site chosen by
the arbitrators;
(ii) The arbitrators shall be and remain at all times
wholly independent and impartial;
(iii) The arbitration proceedings shall be conducted in
accordance with the Employment Arbitration Rules of the
American Arbitration Association, as amended from time to
time;
(iv) Any procedural issues not determined under the
arbitral rules selected pursuant to item (iii) above shall be
determined by the law of the place of arbitration, other than
those laws which would refer the matter to another
jurisdiction;
(v) The costs of the arbitration proceedings (including
attorneys' fees and costs) shall be borne in the manner
determined by the arbitrators;
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EXHIBIT NO.10.(ii)
(vi) The arbitrators may grant any remedy or relief that
would have been available to the parties had the matter been
heard in court;
(vii) The decision of the arbitrators shall be reduced to
writing; final and binding without the right of appeal; the
sole and exclusive remedy regarding any claims, counterclaims,
issues or accounting presented to the arbitrators; made and
promptly paid in United States dollars free of any deduction
or offset; and any costs or fees incident to enforcing the
award shall to the maximum extent permitted by law, be charged
against the party resisting such enforcement;
(viii) The award shall include interest from the date of any
breach or violation of this Agreement, as determined by the
arbitral award, and from the date of the award until paid in
full, at 6% per annum; and
(ix) Judgment upon the award may be entered in any court
having jurisdiction over the person or the assets of the party
owing the judgment or application may be made to such court
for a judicial acceptance of the award and an order of
enforcement, as the case may be.
(d) Acknowledgment of Parties. Company and Employee understand and
acknowledge that this Agreement means that neither can pursue an action
against the other in a court of law regarding any employment dispute,
except for claims involving workers' compensation benefits or
unemployment benefits, and except as set forth elsewhere in this
Agreement, in the event that either party notifies the other of its
demand for arbitration under this Agreement. Company and Employee
understand and agree that this SECTION 13, concerning arbitration,
shall not include any controversies or claims related to any agreements
or provisions (including provisions in this Agreement) respecting
confidentiality, proprietary information, non-competition,
non-solicitation, trade secrets, or breaches of fiduciary obligations
by Employee, which shall not be subject to arbitration.
(e) Consultation. Employee has been advised of Employee's right to
consult with an attorney prior to entering into this Agreement.
14. Indemnification. Employee shall be indemnified and held harmless from
any and all claims, damages and losses of whatsoever nature, including without
limitation court costs and reasonable attorneys fees through appeal, resulting
from any and all legal actions when he is either a party, witness or a
participant in any legal action brought against Company, its subsidiary
companies, Employee, another employee or director of Company, or any other third
party when such action relates to or arises from Employee's employment with
Company or this Agreement. Employee will also be protected through any
indemnity, insurance or other similar programs that cover the outside Board
members or other employees of Company.
15. Miscellaneous Provisions.
(a) Successors of Company. Company will require any successor
(whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of
Company, by agreement in form and substance satisfactory to Employee,
expressly to assume and agree to perform this Agreement in the same
manner and to the same extent that Company would be required to perform
it if no such succession had taken place. Failure of Company to obtain
such agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Employee to
compensation from Company in the same amount and on the same terms as
Employee would be entitled hereunder if Company terminated Employee's
employment without Cause as defined in this Agreement. As used in this
Agreement, "Company" as hereinbefore defined shall include any
successor to its business and/or assets as aforesaid which executes and
delivers the agreement provided for in this SECTION 15 or which
otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
(b) Employee's Heirs, etc. Employee may not assign Employee's
rights or delegate Employee's duties or obligations hereunder without
the written consent of Company. This Agreement shall inure to the
benefit of and be enforceable by Employee's personal or legal
representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees. If Employee should die while any
amounts would still be payable to Employee hereunder as if he had
continued to live, all such amounts, unless otherwise
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EXHIBIT NO.10.(ii)
provided herein, shall be paid in accordance with the terms of this
Agreement to Employee's designee or, if there be no such designee, to
Employee's estate.
(c) Notices. Any notice or communication required or permitted
under the terms of this Agreement shall be in writing and shall be
delivered personally, or sent by registered or certified mail, return
receipt requested, postage prepaid, or sent by nationally recognized
overnight carrier, postage prepaid, to Company at Company's principal
office in Greeneville, Tennessee listed below or to Employee at the
address listed below with a copy to his attorney. Such notice or
communication shall be deemed given (a) when delivered if personally
delivered; (b) five mailing days after having been placed in the mail,
if delivered by registered or certified mail; and (c) the business day
after having been placed with a nationally recognized overnight
carrier, if delivered by nationally recognized overnight carrier. Any
party may change the address to which notices or communications are to
be sent to it by giving notice of such change in the manner herein
provided for giving notice. Until changed by notice, the following
shall be the address to which notices shall be sent:
If to Company, to: Xxxxxx County Bancshares
000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
If to Employee, to: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
With a copy to: C. Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxx, Xxxxxxxxxx & Xxxxxx, P.C.
4th Floor, Bank of America Building
000 Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
(d) Amendment or Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Employee and an authorized
officer of Company (other than Employee). 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 that are not set forth expressly in this
Agreement.
(e) Invalid Provisions. Should any portion of this Agreement be
adjudged or held to be invalid, unenforceable or void, such holding
shall not have the effect of invalidating or voiding the remainder of
this Agreement and the parties hereby agree that the portion so held
invalid, unenforceable or void shall if possible, be deemed amended or
reduced in scope, or otherwise be stricken from this Agreement to the
extent required for the purposes of validity and enforcement thereof.
(f) Survival of Employee's Obligations. The parties' obligations
under this Agreement shall survive regardless of whether Employee's
employment by Company is terminated, voluntarily or involuntarily, by
Company or Employee, with or without Cause.
(g) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all
of which together will constitute one and the same instrument.
(h) Governing Law. This Agreement and any action or proceeding
related to it shall be governed by and construed under the laws of the
State of Tennessee. The parties agree that venue in any litigation
shall be in Xxxx County, TN, the parties having agreed and stipulated
that Xxxx County, TN is a neutral and fair venue to both sides. The
parties also hereby agree to waive any objection to or defense against
Xxxx County, TN as the place of venue.
8
EXHIBIT NO.10.(ii)
(i) Captions and Gender. The use of Captions and Section headings
herein is for purposes of convenience only and shall not effect the
interpretation or substance of any provisions contained herein.
Similarly, the use of the masculine gender with respect to pronouns in
this Agreement is for purposes of convenience and includes either sex
who may be a signatory.
(j) Entire Agreement. This Agreement, and any attachments,
represents the entire agreement between Company and Employee concerning
the subject matter of Employee's employment and supersedes any prior
agreements. The parties contemplate that at some time in the future,
they will enter into a stock option plan for key executives of Company
and other incentive programs which will supplement the terms of this
Agreement.
IN WITNESS WHEREOF, Employee and a duly authorized Company officer have signed
this Agreement.
9
EXHIBIT NO.10.(ii)
THE EMPLOYEE: THE COMPANY:
XXXXXX COUNTY BANCSHARES, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxxx
------------------------- --------------------------------
Xxxxxxx X. Xxxxxx Xxxx Xxxxxxx
President & COO Title: Chairman & CEO
Xxxxxx County Bank
By: /s/ Xxxx Xxxxxxx
--------------------------------
Xxxx Xxxxxxx
Title: Chairman & CEO
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