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EXHIBIT 10.02
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement") is
dated this 13th day of October, 1996, and is by and between THE BANK OF
NASHVILLE (hereinafter referred to as the "Employer"), a corporation formed
under the laws of the State of Tennessee, and XXXXXX X. XXXXXXX (hereinafter
referred to as the "Employee").
Employer and Employee hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee hereby
accepts employment, upon the terms and conditions hereinafter set forth.
2. Term. Subject to the provisions hereof, and the faithful performance by
Employee of this employment, as herein defined, the term of Employee's
employment hereunder shall commence on October 13, 1996, and shall continue
thereafter for a period of one year.
3. Compensation.
(a) Base Salary. As compensation for the services to be rendered by
Employee during the period of his employment hereunder, and upon the condition
that Employee shall fully and faithfully keep and perform all of the terms and
conditions hereof, Employer shall pay Employee a salary of $144,700.00, less
income tax and social security withholdings and other deductions for employee
benefits applicable to other employees of Employer ("Salary"). Such Salary shall
be payable in one initial
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installment (pro rata) and 23 equal installments paid on the 15th and last day
of each month. The Salary shall be subject to periodic review and revision by
the Employer but shall not be decreased during the term of employment hereunder.
(b) Participation in Benefit Plans. Employee shall receive all other
benefits generally offered to other employees of the Employer ("Benefits").
(c) Continuation. This Agreement shall not be deemed abrogated or
terminated if the Board of Directors or shareholders of Employer shall determine
to increase the compensation of Employee for any period of time.
4. DUTIES. Employee is to be engaged as Executive Vice President and head
of Credit Administration to render services in such capacity which are consonant
with the position of Executive Vice President - Credit Administration. In
addition, Employee shall perform such other duties as are reasonably required of
him by Employer in his capacity as an executive employee. The precise services
of Employee may be extended or curtailed, from time to time, at the direction of
Employer as long as Employee continues to serve as the Executive Vice President
in Credit Administration with such duties as are consistent with that position.
If Employee is elected or appointed to serve as any other officer and/or
director of Employer during the term of this Agreement, Employee shall serve in
such capacity or capacities without further compensation.
5. UNAUTHORIZED DISCLOSURE. During the period of his employment hereunder,
Employee shall not, without the prior written consent of the Employer, disclose
to any person, other than a person to whom disclosure is necessary or
appropriate in connection with the performance by Employee of his duties as an
officer of the employer, any
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confidential information obtained by him while in the employ of the Company with
respect to any of the Employer's products, improvements, designs or styles,
processes, customers, methods of marketing or distribution, systems, procedures,
plans, proposals, or policies the disclosure of which he knows, or should have
reason to know, could be damaging to the Employer; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by the Employee)
or any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Employer. Following the termination of employment hereunder, the Employee shall
not disclose any confidential information of the type described above except as
may be required in the opinion of the Employee's counsel in connection with any
judicial or administrative proceeding or inquiry.
6. EXPENSES. Employee is authorized to incur reasonable expenses for
promoting the business of Employer. Employer shall reimburse Employee for all
such expenses upon the presentation by Employee, from time to time, of an
account of such expenditures, setting forth the purposes for which incurred, and
the amounts thereof, together with such receipts showing payments as Employee
has reasonably been able to obtain.
7. VACATIONS. Employee shall be entitled each year to a reasonable vacation
or vacations, consistent with Employer's vacation policy, during which time his
compensation shall be paid in full. Each such vacation shall be taken during a
period mutually satisfactory to both Employer and Employee hereunder.
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8. EXTENT OF SERVICES. Employee agrees to perform his services efficiently,
to the best of his ability, and to Employer's reasonable satisfaction. Employee
agrees that throughout the Term of this Agreement he will not be engaged or
interested in any other business activity which competes with Employer, whether
or not such business activity is pursued for gain, profit or other pecuniary
advantage. Employee agrees that all of his activities as Employee shall be in
conformity with all present and future policies, rules, regulations and
reasonable directions of Employer.
9. INTELLECTUAL PROPERTY. All right, title and interest of every kind and
nature whatsoever in any to any intellectual property, including any inventions,
patents, trademarks, copyrights, ideas, creations, and properties furnished to
Employer during the Term, and/or used in connection with any of Employer's
activities, or written or created by Employee, or with which Employee is
connected in the performance of his services hereunder, shall as between the
parties hereto be, become, and remain the sole and exclusive property of
Employer for any and all purposes and uses whatsoever, regardless of whether the
same were invented, created, written, developed, furnished, produced, or
disclosed by Employee or any other party, and Employee shall have no right,
title or interest of any kind or nature therein or thereto, or in any to any
results and proceeds therefrom. Employee agrees, during and after the Term
hereof, to execute any and all documents and agreements which Employer may deem
necessary and appropriate to effectuate the provisions of this Section 9. The
provisions of this Section 9 shall survive the expiration or terminations, for
any reason, of this Agreement and of Employee's employment.
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10. DEATH DURING EMPLOYMENT. If Employee dies during the Term of this
employment, Employer shall pay to the estate of Employee the compensation which
would otherwise be payable to Employee up to the end of the month in which his
death occurs.
11. TERMINATION OF AGREEMENT. Should any of the following events occur,
Employer may, at its election, terminate this Agreement by giving written notice
thereof to Employee, which such notice shall be effective immediately:
(a) Employee is physically or mentally incapacitated either for a
period of sixty (60) consecutive days, or for a total of ninety (90) days
in any twelve month period and is unable to perform the essential functions
of his job with or without reasonable accommodations.
(b) Employee conducts himself in a manner substantially detrimental to
Employer, and constitutes on the part of the Employee personal dishonesty,
willful misconducts, breach of fiduciary duty involving personal profit
intentional failure to perform stated duties of the Executive Vice
President of the Employer, willful violation of any law, governmental rule
or regulation (other than traffic violations or similar offenses) or final
cease and desist order, or material breach of this Agreement or for any of
the reasons set forth in 12 USC-1818(e) and (g), determined on a
reasonable basis.
(c) Employee competes, in a manner prohibited by this Agreement, with
Employer during the Term hereof.
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(d) Employee is convicted of a misdemeanor involving breach of trust
or is convicted of any felony.
(e) Employee engages in the illegal usage of any drug.
(f) Any state or federal regulatory agency or court of competent
jurisdiction issues an order requiring Employee's removal from any duties
or responsibilities for Employer.
Termination or any other disciplinary actions for any of the reasons stated
in this Section 11 shall be deemed to be "for cause." In the event Employer
terminates or otherwise reduces the total value of Employee's Salary and
Benefits "for cause," Employer shall pay Employee the compensation and benefits
which would otherwise be payable to Employee up to the end of the month in which
the termination or disciplinary action occurs.
If Employer, for reasons other than cause (i) does not, at the end of the
term, renew this agreement for a period of at least one year, (ii) or otherwise
terminates this agreement, then the Employer shall pay Employee within 30 days
of notice from Employee to the President of the Bank a lump sum equal to six (6)
months Salary then being paid plus any Salary then due. Such payments will be
conditioned, at the employer's option, upon the Employee's continuation of this
employment for 60 days after notice with full Salary and Benefits, which shall
be in addition to the lump sum payment made thereafter. Employee shall vacate
the premises of the Employer the last business day of the month in which such
lump sum payment is made.
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The Employee may terminate his employment hereunder (i) at any time if his
health should become impaired to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health, or (ii) upon
sixty (60) days written notice for any other reason.
12. COMPETITION DURING AND AFTER TERM. Employee agrees that during his
employment hereunder, and for a period of six (6) additional months if a payment
of the lump sum amount referred to in Section 11 has been made, he will not,
either separately, or in association with others, directly or indirectly, as an
agent, employee, owner, partner, stockholder, or otherwise, allow his name to be
used by, or establish, engage in, or become interested in any business, trade or
occupation in substantial competition with the principal business being
conducted by Employer, in any banking market of Employer where Employee has been
principally stationed, and in which Employer's business is presently being
conducted, as long as Employer, or any person, firm, or corporation deriving
title to the goodwill of, or shares from it, carries on a like business therein.
Employer and Employee acknowledge that during the term of the Employee's
employment, Employee will acquire special knowledge and/or skill that he can
effectively utilize in competition with Employer.
Employee agrees that the remedy at law for any breach by him of the
covenants contained herein will be inadequate, and that in the event of a
violation of the covenants contained herein, in addition to any and all legal
and equitable remedies which may be available, the said covenants may be
enforced by an injunction in a suit in equity, without the necessity of proving
actual damage, and that a temporary injunction may be granted
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immediately upon the commencement of any such suit, and without notice. The
parties hereto intent that the covenants contained in this Section 12 shall be
deemed to be a series of separate covenants, one for each county of each state
where Employer does business and Employee has been stationed. If, in any
judicial proceeding, a court shall refuse to enforce any or all of the separate
covenants deemed included in such action, then such unenforceable covenants
shall be deemed eliminated from the provisions hereof for the purposes of such
proceeding to the extent necessary to permit the remaining separate covenants to
be enforced in such proceeding. Furthermore, if in any judicial proceeding a
court shall refuse to enforce any covenant by reason of the duration or extent
thereof, such covenant shall be construed to have only the maximum duration or
extent permitted by law.
13. NOTICES. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing, and if sent by registered or
certified mail, postage prepaid, addressed as follows:
If to Employer: The Bank of Nashville
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
If to Employee: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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The persons and addresses to which mailings may be made may be changed from time
to time by a notice mailed as aforesaid.
14. ACKNOWLEDGMENT OF PECULIAR VALUE OF SERVICES. The Employer and Employee
recognize that each party will have no adequate remedy at law for breach by the
other of any of the agreements contained herein and, in the event of any such
breach, the parties hereby agree and consent that the other shall be entitled to
a decree of specific performance, mandamus or other appropriate remedy to
enforce performance of this Agreement.
15. WAIVER OF BREACH. No provisions of this Agreement may be waived or
discharged unless such waiver or discharge is agreed to in writing signed by
Employee and the Employer. No waiver by either party hereto at any time of any
breach by the other party hereto 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.
16. ASSIGNMENT. This Agreement is personal in nature and neither of the
parties hereto shall, without the consent of the other, assign, transfer or
delegate this Agreement or any rights or obligations hereunder except as
expressly provided for herein. Without limiting the generality of the foregoing,
Employee's right to receive payments hereunder shall not be assignable,
transferable or delegable, whether by pledge, creation of a security interest or
otherwise, other than by a transfer by his will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary
to this
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