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EXHIBIT 10.14
FINANCIAL ADVISOR PROMISSORY NOTE REPAYMENT AGREEMENT
THIS FINANCIAL ADVISOR PROMISSORY NOTE REPAYMENT AGREEMENT ("Agreement") is made
this 24th day of July, 1998 by and between The Bank of Nashville (the "Bank")
and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Employee has accepted employment by The Bank as a Financial
Advisor; and
WHEREAS, the Employee has executed the attached Promissory Note; and
WHEREAS, The Bank and the Employee believe it to be mutually advantageous to
provide for the payment of bonuses to the Employee upon the terms and conditions
hereafter set forth.
NOW, THEREFORE, the parties hereto agree as follows:
1. The Bank will pay bonuses to the Employee on the last business day of
each calendar quarter ("Bonus Date" or "Bonus Dates"). Each bonus will
be in an amount equal to the then-due principal payments under the
Promissory Note (the "Promissory Note") attached hereto as Exhibit A
("Bonus Payment" or "Bonus Payments"). Bonus Payments will continue
until the Promissory Note has been paid in full, subject to the other
provisions of the Agreement.
2. In the event that the Employee ceases to be employed by The Bank for
any reason whatsoever, or for no reason, prior to any Bonus Date, then
the Employee will not be entitled to receive any Bonus Payment or
partial or prorated Bonus Payment for having been employed by The Bank
beyond the date of the Bonus Date.
3. Any Bonus Payment payable hereunder shall be withheld by The Bank and
shall be applied to the payment of then-due principal and interest
obligations pursuant to the Promissory Note. The Employee hereby
consents to such withholding and application.
4. Notwithstanding any other provision herein to the contrary, in the
event the Employee dies prior to the full payment of Promissory Note,
The Bank will pay; as of the date preceding the Employee's death, a
final Bonus Payment equal to the-outstanding principal balance and all
accrued but unpaid interest under the Promissory Note. The Bank shall
withhold and apply said Bonus Payment as provided in paragraph 3 above.
The Employee, for himself/herself, and for his/her estate, heirs,
legatees, executors and person representatives, consents to such
payment, withholding and application.
5. This Agreement, and any Bonus Payment hereunder, shall not be
assignable by voluntary or involuntary assignment or by operation of
law, including, without
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limitation, garnishment, attachment or other creditors' process, and
Bonus Payments hereunder are specifically conditioned on The Bank's
ability to withhold and apply each said Bonus Payment as provided in
paragraph 3 above, without interference from the Employee's creditors.
6. There is absolutely no intention that this Agreement be construed as a
contract of employment for any period of time. The Bank maintains an
employment-at-will policy. Just as employees are free to end their
employment with The Bank at any time for any reason, The Bank is free
to end the employment relationship with any employee at any time for
any reason. The Employee shall be an employee-at-will.
7. A. The Employee understands that in the event of the termination
of the Employee's employment with The Bank, the Employee is
not entitled to receive any further Bonus Payments,
commissions, bonuses, overrides, trails, finder's fees, or any
other compensation which would be due the Employee from prior
transactions had the Employee remained in the employ of The
Bank, other than such amounts as the Employee may be due on
transactions that occurred during the month immediately
preceding the termination of the Employee's employment.
B. Notwithstanding the provisions of paragraph 7(A), in the event
the Employee's employment with The Bank is terminated
coincident with or following a change in control (as defined
below), either involuntarily by The Bank or voluntarily by the
Employee for Good Reason (as defined below), (1) The Bank will
make the final Bonus Payment equal to the then outstanding
principal and accrued interest on the Promissory Note, (2) the
Promissory Note shall be stamped "Paid in Full:; (3)
thereupon, The Bank shall have no further liability on the
Promissory Note.
C. "Change in Control" shall mean the closing of any transaction
resulting in a majority change in control of Community
Financial Group, Inc. to The Bank, including any merger, sale
of assets, transfer of stock, or any reorganization as defined
in Section 368 of the Internal Revenue Code of 1986, as
amended.
D. "Good Reason" shall mean either:
(1) Failure by The Bank to comply with any material
provision of the Agreement, provided that the
Employee gives The Bank (as applicable) written
notice of such failure and such failure is not cured
within ten (10) days thereafter;
(2) Any of the following which shall occur coincident
with or following a Change in Control:
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(a) Without the Employee's express written consent, the
assignment to him or her of any duties inconsistent
with and in diminution of his or her positions,
duties, responsibilities and status with The Bank
immediately prior to such Change in Control, or a
change resulting in diminution of his reporting
responsibilities, titles or offices as in effect
immediately prior to such Change in Control, or any
removal of him or her from or any failure to re-elect
him or her to any of such positions resulting in such
diminution, except in connection with the termination
of his or her employment for Cause Disability or
Retirement or as a result of his death or termination
of employment be him other than for Good Reason;
(b) A reduction by The Bank in the Employee's
compensation structure as in effect on the date of
the Agreement, or as the same may be increased from
time to time; or
(c) Without the Employee's express written consent, The
Bank's requiring him or her to be based anywhere
other than within twenty-five (25) miles of his
primary office location immediately prior to such
Change in Control, except for required travel on The
Bank's business consistent with his or her business
travel obligations immediately prior to such Change
in Control.
E. "Cause" shall mean (1) the willful and continued failure by
the Employee to substantially perform his or her duties under
this Agreement (other than any such failure resulting from his
incapacity due to physical or mental illness), after a demand
for substantial performance is delivered to him or her by the
Chief Executive Officer of The Bank, which demand specifically
identifies the manner in which the Employee is alleged to have
not substantially performed his or her duties; or (2) the
willful engaging by the Employee in misconduct which is
material injurious to The Bank, monetarily or otherwise, or
(3) the Employee's conviction of a felony. For purposes of
this subparagraph, no act, or failure to act, on the
Employee's part shall be considered "willful" unless done, or
omitted to be done, by him not in good faith and without
reasonable belief that his action or omission is in the best
interest of The Bank. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Cause
unless and until there shall have been delivered to the Chief
Executive Officer of The Bank, and after he has been afforded
a reasonable opportunity, together with his counsel, to be
heard before such Chief Executive Officer, and a written
finding has been delivered to him to the effect that in the
good faith opinion of such Chief Executive Officer
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the Employee was guilty of conduct as set forth under clause
(1), (2), or (3) of the first sentence of this subparagraph,
specifying in writing the particulars thereof in detail.
F. "Disability" shall mean the Employee's failure to
satisfactorily perform his or her regular duties on behalf of
The Bank on a full-time basis for one hundred eighty (180)
consecutive days, by reason of the Employee's incapacity due
to physical or mental illness, except where within thirty (30)
days after notice of termination is given following such
absence, the Employee shall have returned to the satisfactory,
full-time performance of such duties. Any determination of
Disability hereunder shall be made by the Chief Executive
Officer of The Bank in good faith and on the basis of the
certificates of at least three (3) qualified physicians chosen
by it for such purpose, one of whom shall be the Chief
Executive Officer's regular attending physician.
8. The Employee agrees that any controversy or dispute arising under this
Agreement, the Promissory Note, or out of the Employee's employment by
The Bank (including, but not limited to, claims arising under the Civil
Rights Act of 1964, the Civil Rights Act of 1991, the Age
Discrimination in Employee Act of 1967, and analogous state statues)
shall be submitted for arbitration upon demand of either party in
accordance with the rules of the National Association of Securities
Dealers, Inc. or the New York Stock Exchange, Inc. provided, however,
that in the event of a default under the provisions of the Promissory
Note, The Bank shall be untitled to apply for and obtain from any state
or federal court the injunctive relief provided for in paragraph 7 of
the Agreement before or after the commencement of any arbitration
proceeding, such relief to be afforded to The Bank pending the decision
of the arbitrators.
9. The Employee agrees that in the event of any controversy or dispute
arising under this Agreement, the Promissory Note, or out of the
Employee's employment by The Bank is determined to be ineligible for
arbitration, THE EMPLOYEE SHALL NOT EXERCISE ANY RIGHTS THE EMPLOYEE
MAY HAVE TO ELECT OR DEMAND A TRAIL BY JURY. THE EMPLOYEE AND THE BANK
HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY. The Employee
acknowledges and agrees that this provision is a specific and material
aspect of the agreement between the parties and The Bank would not
enter into this Agreement with the Employee if this provision were not
part of the Agreement.
10. This Agreement shall be governed, constructed and enforced in
accordance with the laws of the State of Tennessee.
11. This Agreement will not be affected by the Employee's disability,
incompetence, or incapacity and is binding on the Employee, the
Employee's estate, and those
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with authority to act on the Employee's behalf. It is also binding on
any organization that may succeed The Bank's interests.
12. The Bank's failure to enforce a breach of this Agreement will not
constitute a waiver of The Bank's right to enforce any other breach of
this Agreement.
13. If any part of this Agreement shall be held invalid or unenforceable,
that part shall be deemed modified as necessary to make it effective,
and the remaining provisions of this Agreement shall remain in effect.
14. The Employee understands that The Bank is relying on the
representations and agreements evidenced herein and in the Promissory
Note, and that this Agreement and the Promissory Note incorporate the
entire understanding between the Employee and The Bank on the subject
matter covered by this Agreement and may not be changed except by a
writing signed by a duly authorized officer of The Bank and the
Employee.
15. The Employee acknowledges that the Employee was given the opportunity
to read this Agreement and to seek the assistance of counsel before the
Employee decided to accept employment by The Bank and to sign this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Bonus Agreement to be executed
as of the date first hereinabove written.
/s/Xxxxxx X. Xxxxxx /s/Xxxxxx X. Xxxxxxx
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Witness Employee
ATTEST: THE BANK OF NASHVILLE
/s/Xxxx X. Xxxxxxxx, SVP By: /s/Xxxx X. Xxxxxxxxx, Xx.
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Title: President
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EXHIBIT A
$124,813.29 July 24, 0000
Xxxxxxxxx, Xxxxxxxxx
PROMISSORY NOTE
1. FOR VALUE RECEIVED, Xxxxxx X. Xxxxxxx promises to pay to the order of
The Bank of Nashville, Nashville, Tennessee (the "Bank"), the principal
sum of One Hundred Twenty Thousand Eight Hundred Thirteen and 29/100
Dollars ($124,813.29). Principal shall be due and payable in thirteen
(13) equal quarterly installments of Eight Thousand Nine Hundred
Fifteen and 23/100 dollars ($8,915.23)followed by one final quarterly
installment of Eight Thousand Nine Hundred Fifteen and 30/100 dollars
($8,915.23), with said payments beginning on the last day of each
calendar quarter beginning September 30, 1998.
2. The Maker may prepay this Promissory Note (this "Note") in whole at any
time or in part from time to time without premium or penalty; provided
that (a) each partial prepayment shall be in an amount not less than
$500, and (b) partial prepayments of this Note shall be applied to the
principal installments due in the inverse order of their maturity.
3. The occurrence of any one or more of the following events shall
constitute a default under the provisions of this Note, and the term
"Default" shall mean, whenever it is used in this Note, any one or more
of the following events:
a. The Maker's employment with the Bank terminates for any reason
other than death, whether involuntary or voluntary and for
whatever cause or no cause;
b. If proceedings in bankruptcy, or for reorganization of the
Maker, or for the readjustment of any of the Maker's debts,
under the United States Bankruptcy Code (as amended) or any
part thereof, or under any other applicable laws, whether
state or federal, for the relief of debtors, now or hereafter
existing, shall be commenced against or by the Maker and,
except with respect to any such proceedings instituted by the
Maker, shall not be discharged within thirty (30) days of
their commencement; and/or
c. A receiver or trustee shall be appointed for the Maker or for
any substantial part of the Maker's assets, or any proceedings
shall be instituted for the dissolution or the full or partial
liquidation of the Maker and, except with respect to any such
appointments requested or
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instituted by the Maker, such receiver or trustee shall not be
discharged within thirty (30) days of his or her appointment
and, except with respect to any such proceedings instituted by
the Maker, such proceedings shall not be discharged within
thirty (30) days of their commencement.
4. If any Default shall occur and be continuing, the Bank may declare the
unpaid principal amount of this Note, together with accrued and unpaid
interest thereon, to be immediately due and payable, whereupon the same
shall become and be forthwith due and payable by the Maker to the Bank,
without presentment, demand, protest or notice of any kind, all of
which are expressly waived by the Maker; provided, that, in the case of
any Default referred to in subparts 3(b) and 3(c) above, the unpaid
principal amount of this Note, together with accrued and unpaid
interest thereon, shall be automatically and immediately due and
payable by the Maker to the Bank without notice, presentment, demand,
protest or other action of any kind, all of which are expressly waived
by the Maker. Upon the occurrence and during the continuation of any
Default, then, in each and every case, the Bank shall be entitled to
exercise in any jurisdiction in which enforcement thereof is sought,
the rights and remedies available to the Bank under the provisions of
this Note and under applicable law.
5. All payments and prepayments of the unpaid balance of the principal
amount of this Note, interest thereon and any other amounts payable
hereunder shall be paid in lawful money of the United States of America
in immediately available funds during regular business hours of the
Bank at the Bank's office at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx
00000, or at such other place as the Bank or any other holder of this
Note may at any time or from time to time designate in writing to the
Maker.
6. In the event of a Default, the Bank shall have the right, without
giving notice, to withhold from any salary, commissions or other
compensation due to the Maker, or from any funds that the Maker
maintains in any accounts at the Bank, any or all of the principal and
interest due on this Note. If the Bank withholds salary, commissions or
other compensation, or if funds are withheld from the Maker's accounts
at the Bank, they shall be used to offset any amounts due the Bank
under this Note. Maker shall remain liable for the balance of any
amount that remains due under this Note.
7. If this Note is forwarded to an attorney for collection after maturity
hereof (whether by acceleration or otherwise), the Maker shall pay to
the Bank on demand all costs and expenses of collection, including
attorney's fees. without limiting the foregoing, Maker's obligation to
pay all costs and expenses of
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collection shall include all costs and expenses incurred by the Bank if
the Bank is determined to be the prevailing party with respect to any
claim or counterclaim asserted by Maker against the Bank in any action
involving the Bank's attempts to collect amounts due under this Note.
8. The Maker waives presentment, protest and demand, notice of protest,
demand and dishonor and notice of nonpayment of this Note. The Bank
may, without compromising, impairing, modifying, diminishing or in any
way releasing or discharging, the Maker from the Maker's obligations
hereunder and without notifying or obtaining the prior approval of the
Maker at any time or from time to time: (a) grant extension of time for
payment or performance by the Maker, or (b) release, substitute,
exchange, impair, surrender, dispose of or add any collateral which is
security for this Note.
9. No delay in the exercise of, or failure to exercise, any right, remedy
or power accruing upon any Default or failure of the Maker in the
performance of any obligation under this Note shall impair any such
right, remedy or power or shall be construed to be a waiver thereof,
but any such right, remedy or power may be exercised from time to time
and as often as may be deemed by the Bank expedient. If a Default
occurs under this Note, and such Default should thereafter be waived by
the Bank, such waiver shall be limited to the particular Default so
waived.
10. The rights and remedies of the Bank under this Note shall be cumulative
and concurrent and may be pursued singularly, successively or together
at the sole discretion of the Bank, and may be exercised as often as
occasion therefor shall occur, and the failure to exercise any such
right or remedy shall in no event be construed as a waiver or release
of the same or any other right or remedy. By accepting full or partial
payment after the due date of any amount of principal or of interest on
this Note, the Bank shall not be deemed to have waived the right either
to require prompt payment when due and payable of all other amounts of
principal or of interest on this Note or to exercise any remedies
available to it in order to collect all such other amounts due and
payable under this Note.
11. If any provision or part of any provision of this Note shall, for any
reason, be held invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision (or any remaining part of any provision) of this Note and
this Note shall be construed as if such invalid, illegal or
unenforceable provision (or part thereof) had never been contained in
this Note, but only to the extent of its invalidity, illegality or
unenforceability.
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12. This Note is subject to the terms and conditions of that certain
Financial Advisor Promissory Note Repayment Agreement between Bank and
Maker to which this Note is attached as Exhibit A.
13. This Note shall be governed, construed and interpreted strictly in
accordance with the laws of the State of Tennessee. The Maker agrees to
stipulate in any future proceeding that this Note is to be considered
for all purposes to have been executed and delivered within the
geographical boundaries of the State of Tennessee, even if it was, in
fact, executed and delivered elsewhere.
THE MAKER ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF COUNSEL IN THE
REVIEW AND EXECUTION OF THIS NOTE.
IN WITNESS WHEREOF, the Maker has caused this Note to be executed in
his name and under his seal on the day and year first written above.
WITNESS:
/s/Xxxxxx X. Xxxxxx /s/Xxxxxx X. Xxxxxxx
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(Name)
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