Exhibit 10.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of November ___, 2001, is
made by and between CNB Bancorp, Inc. a Virginia corporation (the "Employer" or
the "Company") which is the proposed bank holding company for Citizens National
Bank (Proposed), a proposed national bank (the "Bank"), and Xxxxxxx X. Xxxxxxx,
an individual resident of Virginia (the "Executive").
The Company is in the process of organizing the Bank, and the Executive has
agreed to serve as President and Chief Executive Officer of the Bank and the
Company. Upon organization of the Bank, the Employer and the Executive
contemplate that this Agreement will be assigned by the Company to the Bank and
that the Bank will assume the duties of the Company hereunder (except pursuant
to Section 3(d)). Following any such assignment, the term "Employer" as used
herein from time to time shall refer to the Bank.
The Employer recognizes that the Executive's contribution to the growth and
success of the Bank during its organization and initial years of operation will
be a significant factor in the success of the Bank and the Company. The Employer
desires to provide for the employment of the Executive in a manner which will
reinforce and encourage the dedication of the Executive to the Bank and the
Company and promote the best interests of the Bank, the Company and its
shareholders. The Executive is willing to serve the Employer on the terms and
conditions herein provided.
In consideration of the foregoing, the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. EMPLOYMENT. The Employer shall employ the Executive, and the Executive
shall serve the Employer, as President and Chief Executive Officer of the Bank
and the Company upon the terms and conditions set forth herein. The Executive
shall also serve on the Board of Directors of the Company and the Bank. The
Executive shall have such authority and responsibilities consistent with his
position as are set forth in the Company's or the Bank's Bylaws or assigned by
the Company's or the Bank's Board of Directors (the "Board") from time to time.
The Executive shall devote his full business time, attention, skill and efforts
to the performance of his duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Bank policy. The
Executive may devote reasonable periods to service as a director or advisor to
other organizations, to charitable and community activities, and to managing his
personal investments, provided that such activities do not materially interfere
with the performance of his duties hereunder and are not in conflict or
competitive with, or adverse to, the interests of the Company or the Bank.
2. TERM. Unless earlier terminated as provided herein, the Executive's
employment under this Agreement shall commence on the date hereof and be for a
term of three (3) years (the "Term"), renewable for one (1) year periods
thereafter upon the mutual agreement of Employer and Employee.
3. COMPENSATION AND BENEFITS.
(a) Until the date the Bank opens for business ("Opening Date"), the
Employer shall pay the Executive an annual salary of $75,000, which salary shall
be paid in equal semi-monthly installments. Starting on the date the Bank opens
for business, the Employer shall pay the Executive an initial annual base salary
of $92,000, which shall be paid in equal semi-monthly installments. Employer
shall reimburse Executive for his yearly medical insurance premium. Annually,
the Employer's Board of Directors, or a committee thereof, shall review
Executive's compensation, but such compensation shall not be reduced below the
amount specified above. The salary is intended to compensate Executive for all
duties, including Employee's services as a director of the Company and Bank.
(b) The Executive shall receive a cash bonus in the amount of $12,000 on
the Opening Date.
(c) For each fiscal year after the Opening Date, the Executive shall be
eligible to receive a cash bonus of up to 5% of the net pretax income of the
Bank (determined in accordance with generally accepted accounting principles) if
the Bank achieves certain performance levels established by the board of
directors from time to time (the "Bonus Plan").
(d) The Executive shall participate in the Company's long-term equity
incentive program and be eligible for the grant of stock options, restricted
stock, and other awards thereunder or under any similar plan adopted by the
Company. As soon as an appropriate stock option plan is adopted by the Board and
the initial public offering of the Company's common stock is completed, the
Company shall grant to the Executive an option to purchase a number of shares of
Common Stock equal to 5% of the number of shares sold in the initial public
offering, which option shall be at the common stock's market price on the date
of grant. The award agreement for the stock option shall provide that the right
to acquire shares under the option will vest in five equal amounts on the first
five anniversaries of the Opening Date, but only if the Executive remains
employed by the Employer on such date, and shall contain other customary terms
and conditions. Nothing herein shall be deemed to preclude the granting to the
Executive of warrants or options under plans for directors or organizers, in
addition to the options granted hereunder.
(e) The Executive shall participate in all retirement, welfare and other
benefit plans or programs of the Employer now or hereafter applicable generally
to employees of the Employer or to a class of employees that includes senior
executives of the Employer. After the Opening Date, the Employer shall
contribute annually an amount equal to six percent (6%) of Executive's salary to
a deferred compensation plan or retirement plan for the benefit of Employee.
(f) The Employer shall provide the Executive with a term life insurance
policy providing for death benefits equal to two (2) times Executive's annual
salary, payable to the Executive's spouse and heirs. In addition, the Employer
will purchase a $1,000,000 key man term life insurance policy on the life of the
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Executive, with the Employer as the beneficiary as to $750,000 of the death
benefit and Employee's spouse and heirs as the beneficiary as to $250,000 of the
death benefit. The Executive shall cooperate with the Employer in the securing
and maintenance of such policies. Prior to the policies' issuance, and annually
thereafter, Executive shall have a complete physical examination, the cost of
which shall be paid by the Employer, and the results of which shall be shared on
a confidential basis with the Employer's Board of Directors.
(g) Prior to the Opening Date, the Employer shall reimburse the Executive
for business use of his personal automobile, which shall be reimbursed at the
highest rate per mile permitted by the Internal Revenue Service. Beginning on
the Opening Date, the Company shall provide the Executive with an automobile (at
a cost not to exceed $30,000) owned or leased by the Company of a make and model
appropriate to the Executive's status. The Company shall provide for reasonable
expenses associated with the automobile, including, but not limited to,
insurance, maintenance and taxes.
(h) The Employer shall reimburse the Executive for reasonable travel and
other expenses related to the Executive's duties which are incurred and
accounted for in accordance with the normal practices of the Employer.
4. TERMINATION WITHOUT CAUSE; SEVERANCE PAY.
Employer may terminate Executive's employment without "cause," as defined
in Section 5 below. If Employer terminates Executive's employment without cause,
Employer shall pay Executive severance pay equal to his regular salary, less
mandatory deductions, on Employer's regular pay days for the remainder of the
term of this Agreement or twelve (12) months, whichever is longer (the
"Severance Pay"). If Executive is terminated without cause due to a Change of
Control, as defined in Section 7 below, he shall be entitled to the rights set
forth in Section 7. If this Agreement ends as a result of nonrenewal pursuant to
Section 2, such nonrenewal shall not be considered termination without cause.
Notwithstanding the foregoing, in the event Executive elects to compete with the
Company or the Bank in violation of Section 9 of this Employment Agreement,
Employer's obligation to pay the Severance Pay shall terminate immediately.
5. TERMINATION FOR CAUSE. The Executive's employment may be terminated at
any time by Employer for "cause." As used in this Agreement, the term "cause"
means either disloyalty, dishonesty, willful disregard or gross neglect in
relation to the duties, interests and/or obligations Executive owes to Employer.
Termination for cause may also occur if Executive's conduct constitutes a
criminal act related to his duties or position with Employer, or substantially
damages Employer's reputation among its customers, shareholders and/or in the
community banking industry. Termination by Employer for cause shall be
determined by the vote of at least 51% of all of the members of the Employer's
Board of Directors. If the employment is so terminated, Executive will be
entitled to receive any compensation and benefits accrued as of the date of such
termination, but Employer will have no further obligation to Executive hereunder
from and after such date.
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6. TERMINATION BY EXECUTIVE. Executive may resign from the employment of
Employer without liability for doing so by providing ninety (90) days prior
written notice. Upon such resignation, Executive shall have no rights to any
further compensation or benefits after the ninety (90) day notice period has
expired. Employer reserves the right to require Executive not to work for
Employer during this period, but in such event, Employer shall be obligated to
pay Executive the Executive's base salary, and nothing more, for the entire 90
day notice period.
7. CHANGE OF CONTROL. If there shall occur a change of control of the Bank
or the Company ("Change of Control") as defined below, the Executive may be
assigned such other duties or responsibilities as would be reasonably equivalent
under the circumstances and acceptable to the Executive in his reasonable
discretion. During the first six months following the effective date of a Change
of Control but not after, Executive may be "terminated without cause due to a
Change of Control." Alternatively, if Executive is retained but not given
reasonably equivalent duties and responsibilities, he may resign within six
months of the effective date of the Change of Control expressly citing this
reason in a written resignation. If Executive has been terminated without cause
due to a Change of Control or not been given reasonably equivalent duties and --
responsibilities, Executive shall receive, in lieu of any payments pursuant to
Section 4, a one time payment of 2.99 times the annual base compensation
currently being provided to Executive pursuant to this Agreement. As used in
this Section 7, a Change of Control of the Bank or the Company shall be deemed
to have occurred if any of the events described in subparagraphs (a) through (d)
occur.
(a) Any "person" (as such term is used in Sections 13(d) and 14(d)(2) of
the Securities Exchange Act of 1934) is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing twenty- five
percent (25%) or more of the combined voting power of the Company's then
outstanding securities; or
(b) During any period of two consecutive calendar years, individuals who at
the beginning of such period constitute the Company's Board of Directors cease
for any reason to constitute a majority thereof unless the election or the
nomination for election by the Company's shareholders of each new director was
approved by a vote of at least two-thirds of the Company's directors then still
in office who were directors at the beginning of the period; or
(c) The approval by the Company's shareholders of the merger or
consolidation of the Company with any other corporation or business
organization, the sale of substantially all of the assets of the Company or the
liquidation or dissolution of the Company, unless, in the case of a merger or
consolidation, the directors of the Company in office immediately prior to such
merger or consolidation will constitute at least two-thirds of the directors of
the surviving corporation or business organization of such merger or
consolidation and any parent (as such term is defined in Rule 12b-2 under the
Securities Exchange Act of 1934) of such corporation or business organization;
or
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(d) The Company (i) sells or otherwise transfers 25% or more of the voting
stock of the Bank or substantially all of the assets of the Bank to a party
other than the Company or an affiliate of the Company, or (ii) liquidates or
dissolves the Bank.
A termination for cause, as that term is used in Section 5 of this
Employment Agreement, of Executive by a newly controlling entity, even if such
termination for cause occurs in the first six months following a Change of
Control, shall not be construed as "terminated due to a Change of Control," and
the payment of 2.99 times annual base salary provided in this Section 7 shall
not be made.
8. NONDISCLOSURE.
(a) Executive agrees to hold and safeguard any information about the
Company or the Bank gained by Executive during the course of Executive's
employment. Executive shall not, without the prior written consent of Employer,
misappropriate, disclose or make available to anyone for use outside the
Company's and the Bank's organization at any time, either during his employment
or subsequent to any termination of his employment, however such termination is
effected, whether by Executive or Employer, with or without cause, or expiration
or nonrenewal of this Agreement, any information about the Company or the Bank
or their customers or suppliers, whether or not such information was developed
by Executive, except as required in the performance of Executive's duties for
the Company or the Bank.
(b) Executive understands and agrees that any information about the Company
or the Bank or the Company's and the Bank's customers is the property of the
Company or the Bank and is essential to the protection of the Company's and the
Bank's goodwill and to the maintenance of the Company's and the Bank's
competitive position and accordingly should be kept secret. Such information
shall include, but not be limited to, information containing the Company's and
the Bank's promotional plans and strategies, pricing strategies, customers and
prospective customers, customer lists, identity of key personnel in the employ
of customers and prospective customers, computer programs, system documentation,
manuals, ideas, or any other records or information belonging to the Company and
the Bank or relating to the Company's and the Bank's business.
9. RESTRICTIVE COVENANTS.
(a) Non-Competition Agreement. During the Executive's employment with the
Employer and for a period of 12 months thereafter, the Executive shall not
(without the prior written consent of the Employer) compete with the Company or
the Bank or any business entity controlled by, controlling or under common
control with Employer (collectively, "Affiliates") by, directly or indirectly,
forming, serving as an organizer, director or officer of, or as an employer or
consultant acting in a competitive capacity to, or acquiring or maintaining more
than a 1% passive investment in, a depository financial institution or holding
company therefor if such depository institution or holding company has one or
more offices or branches located within a radius of twenty-five (25) miles from
(i) the main office of the Employer or (ii) any branch office of the Employer
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(the "Territory"). Notwithstanding the foregoing, the Executive may serve as an
officer or consultant to a depository institution or holding company therefor,
even though such institution operates one or more offices or branches in the
Territory, if the Executive's employment does not directly involve, in whole or
in part, the depository financial institution's or holding company's operations
in the Territory. This restriction applies regardless of the reason for
Executive's termination of employment, including expiration of this Employment
Agreement or any renewal term hereof, but does not apply after a Change of
Control.
(b) No Solicitation of Customers. During the Executive's employment with
the Employer and for a period of 12 months thereafter, the Executive shall not
(except on behalf of or with the prior written consent of the Employer), either
directly or indirectly, on the Executive's own behalf or in the service or on
behalf of others, (A) solicit, divert, or appropriate to or for a business that
competes with Employer, or (B) attempt to solicit, divert, or appropriate to or
for a business that competes with Employer, any person or entity that was a
customer of the Employer or any of its Affiliates on the date of Executive's
termination, or the expiration of this Employment Agreement, including any
renewal term, and is located in the Territory and with whom the Executive has
had material contact. This restriction does not apply after a Change in Control.
(c) No Recruitment of Personnel. During the Executive's employment with the
Employer and for a period of 12 months thereafter, the Executive shall not,
either directly or indirectly on the Executive's own behalf or in the service or
on behalf of others, (A) solicit, divert, or hire away, or (B) attempt to
solicit, divert, or hire away, to any competing business, any employee of or
consultant to the Employer or any of its Affiliates, regardless of whether the
employee or consultant is full-time or temporary, the employment or engagement
is pursuant to written agreement, or the employment is for a determined period
or is at will. This restriction does not apply after a Change in Control.
(d) The Company, the Bank and Executive have examined in detail this
Section 9 and agree that the restraint imposed upon Executive is reasonable in
light of the legitimate interests of Employer, and it is not unduly harsh upon
Executive's ability to earn a livelihood.
10. ARBITRATION. Except for injunctive relief sought to enforce an ongoing
violation resulting in irreparable harm, any civil dispute arising hereunder
shall be settled or resolved exclusively by mediation and/or arbitration
conducted in accordance with the rules of the American Arbitration Association
then in effect. If arbitration is used, the arbitrator shall not have the
authority to modify this Agreement or to award punitive damages. The arbitration
shall occur at a mutually convenient location or if none can be agreed upon, in
the City of Norfolk, Virginia. The arbitrator's decision shall be final and
enforceable by a court of competent jurisdiction.
11. ENTIRE AGREEMENT. This Agreement supersedes any and all other
agreements, either oral or in writing, between the parties hereto with respect
to the employment of Executive by Employer and contains all the covenants and
agreements between the parties, or between or among the parties and any other
persons, with respect to such employment in any manner whatsoever. Each party to
this Agreement acknowledges that no representations, inducements, promises or
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agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this Agreement will be valid or
binding. Any modification of this Agreement will be effective only if it is in
writing signed by the party to be charged.
12. BINDING EFFECT AND ASSIGNMENT. This Agreement will be binding upon and
inure to the benefit of each of the parties and their successors. Employer may
assign this Agreement, subject to the provisions of this Section 12, and such
assignee shall then acquire all the rights and obligations of Employer
hereunder.
13. LAW GOVERNING AGREEMENT. This Agreement will be governed and construed
in accordance with the laws of the Commonwealth of Virginia.
14. PARTIAL INVALIDITY. If, in any proceeding seeking injunctive relief,
any provision in this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, such court is hereby authorized and requested
by the parties to modify such provision to the extent the court deems necessary
to award appropriate injunctive relief.
15. SEVERABILITY. If any clause or provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, then the remainder of this Agreement shall not be
affected thereby, and in lieu of each clause or provision of this Agreement
which is illegal, invalid or unenforceable, there shall be added, as a part of
this Agreement, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and as may be
legal, valid, and enforceable.
16. NOTICES. Any notices to be given hereunder by either party to the other
may be effected either by personal delivery in writing or by mail, registered or
certified, postage prepaid, with return receipt requested. Mailed notices will
be addressed to the parties at the addresses appearing herein, but each party
may change his address by written notice in accordance with this Section 15.
Notices delivered personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of five (5) days after mailing:
TO: CNB Bancorp, Inc.
00 X. Xxxxxxx Xxxxxxxxx, Xxxxx X
Xxxxxxx, XX 00000
TO: Xxxxxxx X. Xxxxxxx
00000 Xxxxx Xxxx
Xxxx, XX 00000
17. COUNTERPARTS. This Agreement may be executed in counterparts, together
which shall constitute one and the same instrument.
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IN WITNESS WHEREOF, Employer has caused this Agreement to be executed in its
name and behalf by its proper officers, thereunto duly authorized, and Executive
has set his hand and seal as of the date first above written.
CNB BANCORP, INC.
By:
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Chairman
EXECUTIVE
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Xxxxxxx X. Xxxxxxx
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