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EXHIBIT 10.20
Executive Employment Agreement
This Executive Employment Agreement entered into this 1st day of March,
2001, by and among COMMUNITY FINANCIAL GROUP, INC., a Tennessee corporation (the
"Company"), THE BANK OF NASHVILLE, a banking corporation organized under the
laws of the State of Tennessee (the "Bank"), and XXXXXXX XXXXX (the
"Executive").
WITNESSETH:
WHEREAS, the Company is a one-bank holding company which owns one
hundred per cent (100%) of the outstanding stock of the Bank;
WHEREAS, the Company and the Bank desire to retain the services of
Executive on the terms and conditions set forth herein and, for purposes of
effecting the same, the Boards of Directors of the Company and the Bank have
approved this Employment Agreement and authorized its execution and delivery to
the Executive on behalf of the Company and the Bank;
WHEREAS, the Executive serves as Chief Financial Officer of the Company
and, as such, is a key executive officer of the Company whose continued
dedication, availability, advice and counsel to the Company is deemed important
to the Company, the Board of Directors of the Company, and the present and
future stockholders of the Company;
WHEREAS, the Executive serves as Chief Financial Officer of the Bank
and, as such, is a key executive officer of the Bank whose continued dedication,
availability, advice and counsel to the Bank is deemed important to the Board of
Directors of the Bank, the Bank and the Company;
WHEREAS, the Company and the Bank wish to attract and retain
well-qualified executives, and it is in the best interests of the Company, the
Bank and the Executive, notwithstanding any change in control of the Company or
the Bank, to secure the services of the Executive, whose experience and
knowledge of the affairs of the Company and the Bank, and whose reputation and
contacts in the industry, are extremely valuable to the Company and the Bank;
and
WHEREAS, the Company and the Bank consider the establishment and
maintenance of a sound and vital management team to be part of their overall
corporate strategy and to be essential to protecting and enhancing the best
interests of the Bank, the Company, and its stockholders.
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NOW, THEREFORE, to assure the Company and the Bank of the Executive's
continued dedication, the availability of Executive's advice and counsel to the
Boards of Directors of the Company and the Bank, the availability of Executive's
management skills to the Company and the Bank, and to induce the Executive to
remain and continue in the employ of the Company and the Bank in Executive's
current capacities, and for other good and valuable consideration, the receipt
and adequacy of which each party hereby acknowledged, the Company, the Bank and
the Executive hereby agree as follows:
1. EMPLOYMENT. The Company and the Bank agree to, and do hereby,
employ Executive and Executive agrees to, and does hereby, accept such
employment, all upon the terms and conditions hereinafter set forth.
2. TERM: The initial term of employment under this Agreement
shall be for a period of one (1) year, commencing on the date first above
written and ending at the close of business one year from said date. This
Agreement shall be automatically renewed for succeeding terms of one (1) year
each, unless either party shall, at least thirty (30) days, but not more than
one hundred eighty (180) days, prior to the expiration of any term, give written
notice of his or its intention not to renew this Agreement.
3. EMPLOYMENT, DUTIES, AUTHORITY, AND RESPONSIBILITIES:
(a) During the term of employment of the Executive by the
Company and the Bank, the Executive shall devote Executive's full business time
and attention to the rendition of services as Chief Financial Officer of the
Company and as Chief Financial Officer of the Bank, and to the furtherance of
the best interests of the Company and the Bank, and shall exert Executive's best
efforts in the rendition of such services. The Executive agrees that in the
rendition of such services and in all aspects of such employment Executive will
comply with the policies, standards and regulations of the Company and the Bank
as from time to time established by their respective Boards of Directors. The
expenditure by the Executive of reasonable amounts of time for charitable,
professional and similar activities is encouraged and shall not be deemed a
breach of this Agreement provided such activities do not materially interfere
with the services to be rendered to the Company and the Bank hereunder. Further,
Executive shall be allowed to pursue personal business ventures and such
ventures shall not be deemed a breach of this Agreement as long as (i) such
ventures do not violate Section 18 below, (ii) Executive's involvement in such
ventures is only in the nature of a passive investor, and (iii) Executive's
involvement in such ventures does not materially interfere with the services to
be rendered to the Company and the Bank hereunder.
(b) As Chief Financial Officer of the Company, the
Executive shall have
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the general powers and duties of supervision and management of the Company (the
Company includes any and all subsidiaries, ventures and related business) which
usually pertain to such offices and shall perform all such other duties as are
properly required of Executive by the Board of Directors of the Company. In
performing the services hereunder, the Executive shall be responsible to and
shall report only to the Board of Directors of the Company.
(c) The Board of Directors of the Company hereby grants
the Executive the necessary authority and responsibility to manage the
day-to-day operations of the Company consistent with the implementation of
policies set by the President/Chief Executive Officer of the Company. All
officers of the Company shall be supervised by, be responsible to, and shall
report, directly or indirectly, to the Executive pursuant to such reporting
structure as shall be established from time to time by the President/Chief
Executive Officer. In the event of any breach of any provision of this Agreement
by the Company which breach is not cured within ten (10) days after written
notice of the breach to the Company by the Executive shall entitle the Executive
to terminate his employment by the Company pursuant to this Agreement by not
less than sixty (60) days written notice to the Board of Directors of the
Company and, at the option of Executive, to terminate his employment by the Bank
pursuant to this Agreement by not less than sixty (60) days written notice to
the Board of Directors of the Bank. Any such termination by the Executive of his
employment by the Bank hereunder resulting from a breach of the terms of this
Agreement shall be treated the same as a termination by the Bank without cause
and governed by Section 9 below, unless such breach occurs in Contemplation of a
Change of Control or within twelve (12) months after a Change of Control, and
constitutes Good Reason for the Executive to terminate Executive's employment,
in which case it shall be governed by Section 15 below.
(d) As Chief Financial Officer of the Bank, the Executive
shall have the general powers and duties of supervision and management of the
Bank (the Bank includes any and all subsidiaries, ventures and related business)
which usually pertain to the office of Chief Financial Officer, including all
day to day bank operations, supervision and implementation of all information
and technology systems, regulatory compliance, both federal and state, and loan
review. In performing the services hereunder, the Executive shall be responsible
to and shall report to the Chief Executive Officer/President.
(e) The Board of Directors of the Bank hereby grants the
Executive the necessary authority and responsibility to manage the day-to-day
operations of the Bank consistent with the implementation of policies set by the
President/Chief Executive Officer of the Bank. A material reduction or
limitation in these duties and responsibilities by the Bank shall constitute a
breach of this Agreement by the Bank. In the event of any breach of
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any provision of this Agreement by the Bank which breach is not cured within ten
(10) days after written notice of the breach to the Bank by the Executive shall
entitle the Executive to terminate his employment by the Bank pursuant to this
Agreement by not less than sixty (60) days written notice to the Board of
Directors of the Bank and, at the option of Executive, to terminate his
employment by the Company pursuant to this Agreement by not less than sixty (60)
days written notice to the Board of Directors of the Company. Any such
termination by the Executive of his employment by the Bank hereunder resulting
from a breach of the terms of this Agreement shall be treated as a termination
by the Bank without cause and governed by Section 9 below, unless such breach
occurs in Contemplation of a Change of Control or within twelve (12) months
after a Change of Control, and constitutes Good Reason for the Executive to
terminate Executive's employment, in which case it shall be governed by Section
15 below.
4. COMPENSATION: The Bank agrees to pay Executive, and Executive
agrees to accept, as compensation for all services rendered by him to the
Company, the Bank and their affiliates during the period of his employment under
this Agreement, base compensation at the annual rate of not less than $125,000,
which shall be payable in accordance with the normal payroll policies of the
Bank and shall be subject to all appropriate withholding taxes.
5. PARTICIPATION IN BENEFIT PLANS, REIMBURSEMENT OF BUSINESS
EXPENSES AND MOVING EXPENSES:
(a) During the term of this Agreement, Executive shall be
entitled to participate in all pension, group insurance, hospitalization,
deferred compensation, Company paid life insurance, or incentive plans, and any
other benefit plan of the Company or the Bank presently in effect or hereafter
adopted by the Company or the Bank and generally available to all employees of
either organization of senior executive status (the "Benefit Plans").
(b) During the term of this Agreement, to the extent that
such expenditures meet the requirements of the Internal Revenue Code for
deductibility by the Company or the Bank for federal income tax purposes and are
substantiated by the Executive as required by the Internal Revenue Service and
policies of the Company and the Bank, the Bank shall reimburse the Executive
promptly for all expenditures (including travel, entertainment, parking,
business meetings, and the monthly costs, including dues, of maintaining
memberships at appropriate clubs, including, but not limited to, Nashville City
Club) made in accordance with rules and policies established from time to time
by the Board of Directors of the Bank in pursuance and furtherance of the
Company's and the Bank's business and good will.
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(c) During the term of this Agreement, in the event that
the Company or the Bank relocates its principal executive offices to a location
more than one hundred (100) miles from Nashville, Tennessee, or the Board of
Directors of either the Company or the Bank requires the Executive to be based
anywhere more than one hundred (100) miles from the Bank's principal executive
offices, the Bank shall pay (or reimburse the Executive for) all reasonable
moving expenses incurred by Executive relating to a change of Executive's
principal residence in connection with such relocation, provided that the
Executive furnishes the Bank with adequate records and documentary evidence for
the substantiation of such reimbursement.
6. ILLNESS: In the event Executive is unable to perform
Executive's duties under this Agreement on a full-time basis for a period of six
(6) consecutive months by reason of illness or other physical or mental
disability, and at or before the end of such period Executive does not return to
work on a full-time basis, the Company and the Bank may jointly terminate
Executive's employment pursuant to this Agreement without further or additional
compensation being due the Executive from the Bank pursuant to this Agreement,
except that the Executive shall be paid Executive's base compensation from the
Bank at the rate in effect at the time of Executive's termination for a period
of twelve (12) months from the date of the commencement of the Executive's
inability to perform his duties, less any disability payments payable during
such time under any disability plans maintained and paid for by the Bank, and
Executive shall continue to participate in all Benefit Plans in effect at the
time of Executive's termination for a period of twelve (12) months from the date
of the commencement of the Executive's inability to perform his duties.
7. DEATH: In the event of the Executive's death during the term
of this Agreement, Executive's estate, legal representatives or named
beneficiaries (as directed by the Executive in writing) shall be paid
Executive's base compensation from the Bank at the rate in effect at the time of
the Executive's death under this Agreement for the period of twelve (12) months
from the date of the Executive's death, less any amounts payable to Executive's
estate or beneficiaries under life insurance policies on the life of Executive
maintained and paid for by Bank.
8. TERMINATION BY COMPANY: Notwithstanding the provisions of
Section 2 above, the Board of Directors of the Company may, in its sole
discretion, terminate the Executive's employment with the Company under this
Agreement at any time in any lawful manner by not less than thirty (30) days
written notice to the Executive, in which event the Executive shall be entitled
to elect to have such termination likewise constitute a termination of
Executive's employment by the Bank. If Executive so elects, then unless such
termination is for Cause as defined in Section 10 of this Agreement or unless
the Executive's
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employment is terminated in Contemplation of a Change of Control or within
twelve (12) months after a Change of Control, Executive shall be entitled to the
compensation provided for in Section 9 below.
9. TERMINATION BY BANK: Notwithstanding the provisions of Section
2 of this Agreement, the Board of Directors of the Bank may, in its sole
discretion, terminate the Executive's employment with the Bank under this
Agreement at any time in any lawful manner after one hundred eighty (180) days
from the date of initial employment as determined in accordance with Section 2,
and the anniversary date for each year thereafter, in the event this Agreement
is automatically renewed, by not less than thirty (30) days written notice to
the Executive (or, at the Bank's option, pay for such thirty days in lieu of
notice) and in such event, unless the Bank terminates the Executive's employment
with the Bank for Cause as defined in Section 10 of this Agreement or, unless
the Executive's employment is terminated in Contemplation of a Change of Control
or within twelve (12) months after a Change of Control, the Executive shall be
paid, during the twelve (12) months following such termination at such times as
payment was theretofore made, the base compensation that the Executive would
have been entitled to receive during such period of time had such termination
not occurred, such payments to be in addition to any payment in lieu of notice.
Furthermore, the Bank shall pay to the Executive in equal monthly payments an
amount sufficient to fully fund any Benefit Plans of the Bank, with respect to
the Executive, commencing at the beginning of the first month following
termination of Executive's employment with the Bank pursuant to this paragraph,
and ending twelve (12) months after such termination. In the event that a
payment made with respect to any benefit plan or program would otherwise violate
the terms of the plan or program, an equivalent amount shall be paid directly to
Executive. Executive shall owe no duty to mitigate these payments, and shall not
be required to obtain or attempt to obtain alternate employment during such
twelve (12) month period. If Executive obtains other gainful employment during
such twelve (12) month period, the compensation and benefits received by
Executive during said period from such other employment shall not reduce the
payments otherwise due to Executive pursuant to this section.
10. TERMINATION FOR CAUSE:
(a) Notwithstanding the provisions of this Agreement, the
Board of Directors of the Company may, in its sole discretion, terminate the
Executive's employment with the Company for Cause. For the purposes of this
Agreement, the Company shall have "Cause" to terminate the Executive's
employment hereunder: (i) because of the Executive's personal dishonesty,
incompetence, willful misconduct, gross negligence, willful breach of fiduciary
duty (including involving personal profit), failure to substantially perform
stated duties described In Section 3 of this Agreement, willful violation of any
material law, rule,
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regulation (other than traffic violations or similar offenses), willful
violation of any final cease-and-desist order issued by any regulatory agency
having jurisdiction over the Company or the Bank, or material breach by the
Executive of any provision of this Agreement or any related agreement entered
into by the Executive; or (ii) if the Board of Directors of the Bank terminates
the employment of Executive with the Bank for Cause pursuant to subsection (c)
of this Section 10. For purposes of this paragraph, no act, or failure to act,
on the Executive's part shall be considered "willful" unless done, or omitted to
be done, by him not in good faith or without reasonable belief that his action
or omission was in the best interest of the Company; provided that any act or
omission to act on the Executive's behalf in reliance upon an opinion of counsel
to either the Company or the Bank shall not be deemed to be "willful."
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been a resolution
approved by a majority of the non-officer members of the Board of Directors of
the Company finding that, in the good faith opinion of such majority, the
Executive was guilty of conduct which is deemed to be Cause within the meaning
of this paragraph, after notice to the Executive and an opportunity for him,
together with his counsel, to be heard before such majority (with the Company
Board retaining the right to deliberate without the Executive and his counsel
present before and/or after such hearing).
(b) If the Company terminates the Executive's employment
with the Company for Cause in accordance with Section 10(a) of this Agreement,
the Company shall have no obligation to make any further payments to or provide
benefits for the Executive, provided that the Executive shall be entitled to
receive any accrued compensation or benefits, insured or otherwise, that he
would otherwise have been eligible to receive under any Benefit Plans of the
Company through the date of such termination.
(c) Notwithstanding the provisions of this Agreement, the
Board of Directors of the Bank may, in its sole discretion, terminate the
Executive's employment with the Bank for Cause. For the purposes of this
Agreement, the Bank shall have "Cause" to terminate the Executive's employment
hereunder: (i) because of the Executive's personal dishonesty, incompetence,
willful misconduct, gross negligence, willful breach of fiduciary duty
(including involving personal profit), failure to substantially perform stated
duties described in Section 3 of this Agreement, willful violation of any
material law, rule, regulation (other than traffic violations or similar
offenses), willful violation of any final cease-and-desist order issued by any
regulatory agency having jurisdiction over the Company or the Bank, the
imposition of any sanction upon the Executive by any such regulatory agency, or
material breach by the Executive of any provision of this Agreement or any
related agreement entered into by the Executive; or (ii) if the Board of
Directors of the Company terminates Executive's employment with the Company for
Cause pursuant to subsection (a) of this Section 10. For purposes of this
paragraph, no act, or failure to act, on
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the Executive's part shall be considered "willful" unless done, or omitted to be
done, by him not in good faith or without reasonable belief that his action or
omission was in the best interest of the Bank; provided that any act or omission
to act on the Executive's behalf in reliance upon an opinion of counsel to
either the Company or the Bank shall not be deemed to be "willful."
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been a resolution
approved by a majority of the non-officer members of the Board of Directors of
the Bank finding that, in the good faith opinion of such majority, the Executive
was guilty of conduct which is deemed to be Cause within the meaning of this
paragraph, after notice to the Executive and an opportunity for him, together
with his counsel to be heard before such majority (with the Bank Board retaining
the right to deliberate without the Executive and his counsel present before
and/or after such hearing).
(d) If the Bank terminates the Executive's employment
with the Bank for Cause in accordance with Section 10(c) of this Agreement, the
Bank shall have no obligation to make any further payments to or provide
benefits for the Executive, provided that the Executive shall be entitled to
receive any accrued compensation or benefits, insured or otherwise, which
Executive would otherwise have been eligible to receive under any Benefit Plans
of the Bank through the date of such termination.
11. TERMINATION BY THE EXECUTIVE: The Executive may terminate the
Executive's employment with the Company or with the Bank hereunder at any time
upon sixty (60) days written notice to the affected entity. If the Executive
terminates the Executive's employment with either the Company or the Bank other
than for breach of this Agreement as provided in Section 3, for Good Reason, in
Contemplation of a Change of Control or within twelve (12) months after a Change
of Control, Executive shall be deemed to have voluntarily terminated Executive's
employment with both the Company and the Bank ("Voluntary Termination"), and
thereupon the Company and the Bank shall have no obligation to make any further
payments to or provide benefits for the Executive, provided that the Executive
shall be entitled to receive any accrued compensation and benefits, insured or
otherwise, that he would otherwise have been eligible to receive under any
Benefit Plans of the Company or the Bank through the date of such termination.
12. DEFINITION OF CHANGE OF CONTROL OF THE COMPANY: A "Change of
Control" of the Company shall mean a change of control of a nature that would be
required to be reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 ("Exchange Act") or
such item thereof which may hereafter pertain to the same subject; provided
that, and notwithstanding the foregoing, a Change of Control shall be deemed to
have occurred if (i) any person (as that term is used in Sections 13 (d) and
14(d) (2) of the Exchange Act) is or becomes the
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beneficial owner, directly or indirectly, of securities of the Company
representing thirty-five percent (35%) or more of the combined voting power of
the Company's then outstanding securities, or (ii) the Company shall cease to be
a publicly owned corporation, as defined in the Exchange Act.
13. DEFINITION OF CHANGE OF CONTROL OF THE BANK: A "Change of
Control" of the Bank shall mean any Change of Control of the Company, or any
change or series of changes in circumstances which result in the Company ceasing
to own, control, and vote an absolute majority of the voting securities of the
Bank.
14. TERMINATION BY COMPANY OR BANK AFTER CHANGE IN CONTROL: If a
Change of Control of the Company or a Change of Control of the Bank shall have
occurred, this Agreement shall continue in full force and effect. If the
Executive's employment is terminated by the Company or the Bank within twelve
(12) months after a Change of Control of the Company, as defined in Section 12
above, or a Change of Control of the Bank, as defined in Section 13 above, or in
Contemplation of a Change of Control of either, as defined below, Executive
shall be entitled to be paid an amount equal to the sum of Executive's annual
base cash compensation plus the annual value of Executive's participation in all
Benefit Programs in effect at the time of such termination. At Executive's
option, the sums payable pursuant to this Section will be paid in full in a lump
sum and without discount within thirty (30) days of the termination of
Executive's employment, or in equal monthly installments over twelve (12)
months. Any termination of Executive's employment hereunder during any period of
time when the Board of Directors of the Company has formed an intent to offer
the Bank for sale or to promote an acquisition of or merger of the Company or
the Bank, or when the Company has knowledge that any person(s), entity or
concern has taken steps reasonably calculated to effect a Change of Control of
the Company shall constitute a termination of Executive's employment "In
Contemplation of a Change of Control". The period of Contemplation of Change of
Control shall continue until the Board of Directors of the Company no longer
intends to promote an acquisition of or merger of the Company or the Bank, or
until in the opinion of the Company's Board of Directors, the person(s), concern
or entity has abandoned or terminated its efforts to effect a Change of Control
of the Company, as applicable. Any good faith determination by the Company's
Board of Directors that Board no longer has such an intent, or that the
person(s), concern or entity has abandoned or terminated its efforts to effect a
Change of Control of the Company shall be conclusive and binding on the
Executive. Such determination shall be promptly communicated to the Executive in
writing by the Chairman of the Compensation Committee or Chairman or Vice
Chairman of the Board of the Company. Notwithstanding the foregoing, any
termination of the Executive by the Company or by the Bank within ninety (90)
days prior to a Change of Control of the Company shall be conclusively presumed
to have been in Contemplation of Change of Control.
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15. TERMINATION BY EXECUTIVE FOR GOOD REASON: During the term of
Executive's employment hereunder, the Executive may terminate his employment
with both the Company and the Bank if the Executive has Good Reason, as defined
below. Termination by the Executive of Executive's employment with either entity
shall be deemed termination with both. For purposes of this Agreement, "Good
Reason" shall mean:
(i) The assignment of duties to the Executive by the
Company or the Bank which (1) are significantly different from the Executive's
duties immediately prior to the Change of Control, or (2) result in the
Executive having significantly less authority and/or responsibility than
Executive had as an executive officer of the Company or the Bank prior to the
Change of Control, without the express written consent of Executive;
(ii) The removal of the Executive from or any failure to
re-elect Executive to the positions set forth in Section 3 above, except in
connection with a termination of his employment by the Company or the Bank for
Cause or Executive's resignation other than for Good Reason.
(iii) A reduction of the Executive's base salary as in
effect on the date of the Change of Control, unless the reduction in the
Executive's salary is waived in writing by the Executive;
(iv) The failure of the Company and the Bank collectively
to provide the Executive with substantially the same fringe benefits (including
paid vacations) that were provided to Executive immediately prior to the Change
of Control, or with a package of fringe benefits that, though one or more of
such benefits may vary from those in effect immediately prior to such Change of
Control, is substantially comparable in all material respects to such fringe
benefits taken as a whole; or
(v) Requiring the Executive to perform a significant
part of Executive's duties in locations more than one hundred (100) miles from
Nashville, Tennessee.
Further, and notwithstanding any other provision of this Agreement, the
Executive may terminate his employment without Good Reason at any time within
ninety (90) days after a Change of Control shall have occurred.
16. PAYMENTS ON TERMINATION: Upon termination of Executive's
employment by the Company or the Bank, the Company and the Bank shall have the
following payment obligations to Executive:
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(a) If the Executive's employment is terminated due to
illness of the Executive, the provisions of Section 6 shall apply.
(b) If the Executive's employment is terminated due to
the death of the Executive, the provisions of Section 7 shall apply.
(c) If the Executive's employment is terminated by the
Company other than for Cause, and not In Contemplation of a Change of Control of
the Company or the Bank or within twelve months after a Change of Control of the
Company or the Bank, the provisions of Section 8 shall apply, and therefore the
payment provisions of Section 9 apply.
(d) If the Executive's employment is terminated by the
Bank other than for Cause, and not In Contemplation of a Change of Control of
the Company or the Bank or within twelve months after a Change of Control of the
Company or the Bank, the provisions of Section 9 shall apply.
(e) If the Executive's employment is terminated by the
Company for Cause, or by the Bank for Cause, the provisions of Section 10 shall
apply.
(f) If the Executive's employment is terminated by the
Executive as a result of a breach of the agreement by the Company or the Bank,
the provisions of Section 3 apply, and therefore the payment provisions of
Section 9 apply.
(g) In the event of a Voluntary Termination of
Executive's employment as defined in Section 11, the provisions of Section II
apply.
(h) If the Executive's employment is terminated by the
Company or the Bank within twelve (12) months after a Change of Control of the
Company, as defined in Section 12 above, or a Change of Control of the Bank, as
defined in Section 13 above, or in Contemplation of a Change of Control of
either, as defined in Section 14, the provisions of Section 14 shall apply.
(i) If the Executive's employment is terminated by the
Executive for Good Reason, as defined in Section 15 above, the Executive's
employment with the Company and with the Bank shall be deemed to have been
terminated without Cause by the Company and by the Bank at the time of such
termination by Executive for Good Reason. If such termination is during a period
of Contemplation of Change of Control, or within twelve (12) months after a
Change of Control, the provisions of Section 14 shall apply.
(j) Termination of Executive's employment by the Company
or by the
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Bank or by the Executive shall be communicated by written Notice of
Termination to the other parties hereto. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision(s) in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
17. CONFIDENTIALITY: In the course of the Executive's employment,
the Company and the Bank may disclose or make known to the Executive, and the
Executive may be given access to or may become acquainted with, certain
information, including but not limited to confidential information which relates
to or is useful in the businesses of the Company and the Bank and which is not
available from public records or other generally available sources
(collectively, "Confidential Information"), and which the Company or the Bank
consider proprietary and desire to maintain confidential. During the term of
this Agreement and at all times thereafter, the Executive shall not in any
manner, either directly or indirectly, divulge, disclose or communicate to any
person or firm, except to legal counsel for the Company or the Bank or otherwise
to or for the benefit of the Company or the Bank as directed by the Company or
the Bank, and except to the Executive's legal counsel in connection with the
resolution of any dispute between the Executive and the Company or the Bank
under this Agreement, any of the Confidential Information which Executive may
have acquired in the course of or as an incident to Executive's employment by
the Company or the Bank, the parties agreeing that such Confidential Information
affects the successful and effective conduct of the business and their goodwill
of the Company and the Bank, and that any material breach of the terms of this
Section 17 is a material breach of this Agreement.
18. COVENANT NOT TO COMPETE: During the term of this Agreement,
Executive agrees that Executive will not directly or indirectly own, become
interested in, or become involved in any manner whatsoever in any business which
is similar or competitive with any aspect of the business of the Company or the
Bank. Without limiting the foregoing, Executive agrees during the term of this
Agreement not to engage in the banking or leasing businesses, whether as an
owner, partner, director, officer, employee, consultant, stockholder, agent,
salesman or in any other capacity for any person, partnership, firm, corporation
or other entity without the express written consent of the Board of Directors of
the Company. Further, if Executive terminates Executive's employment in a
Voluntary Termination or for Good Reason, or if the Company or the Bank
terminate Executive's employment in Contemplation of a Change of Control, or
within twelve (12) months after a Change of Control, or for Cause, for the
period of twelve (12) months following the termination of Executive's employment
with the Company or the Bank, Executive agrees that Executive will not directly
or indirectly own, become interested in, or become involved in any manner
whatsoever, including, without limitation, as an owner, partner, director,
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officer, employee, consultant, stockholder, agent, salesman or in any other
capacity, with any credit union, savings and loan association, bank or bank
holding company which has an office in Davidson County, Tennessee or in any
county contiguous to Davidson County, Tennessee without the express written
consent of the Board of Directors of the Company. The foregoing, however, shall
not prohibit the Executive (i) from continuing to maintain any ownership
interest currently held by Executive in any business which is similar or
competitive with any aspect of the business of the Company or the Bank provided
that the provisions of parts (ii) and (iii) of the last sentence of Section 3(a)
above are satisfied, or (ii) from obtaining an ownership interest in a business
which is similar or competitive with any aspect of the business of the Company
or the Bank provided that (A) the provisions of parts (ii) and (ill) of the last
sentence of Section 3(a) above are satisfied, (B) the shares of such business
are publicly traded on a national securities exchange, and (C) Executive does
not own, directly or indirectly, more than five percent (5%) of the total
outstanding shares of such business. Executive specifically acknowledges and
agrees that the foregoing restriction on competition with the Company and the
Bank will not prevent Executive from obtaining gainful employment following
termination of Executive's employment with the Company and the Bank, and is a
reasonable restriction upon Executive's ability to compete with the Company and
the Bank, given the economic benefits afforded to Executive under this
Agreement.
19. NO ENTICEMENT OF EMPLOYEES : Executive agrees that Executive
will not, directly or indirectly, entice or induce, or attempt to entice or
induce any employee of the Company or Bank to leave the employ of the Company or
the Bank during the period covered by the Non--Competition provisions of Section
18 above.
20. NO SOLICITATION: Executive will not, directly or indirectly,
solicit, entice or induce, or attempt to entice or induce any customer or user
of the products or services of the Bank or the Company during the period covered
by the Non-Competition provisions of Section 18 above.
21. REMEDIES: Executive acknowledges and agrees that the breach or
threatened breach of any of the provisions of Sections 17, 18, 19 and 20 of this
Agreement will cause irreparable harm to the Company and the Bank, and can-not
be adequately compensated by the payment of damages. Accordingly, Executive
covenants and agrees that the Company and the Bank, in addition to any other
rights or remedies which they may have, will be entitled to such equitable and
injunctive relief as may be available from any court of competent jurisdiction
to restrain Executive from breaching or threatening to breach any of the
provisions of this Sections 17, 18, 19 and 20, without posting bond or other
surety. Such right to obtain injunctive relief may be exercised at the option of
the Company or the Bank in addition to, concurrently with, prior to, after, or
in lieu of the exercise of any other rights
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or remedies which the Company or the Bank may have as a result of any such
breach or threatened breach. In addition to all other remedies, in the event of
the breach or threatened breach of any of the provisions of Sections 17, 18, 19
or 20 of this Agreement, the Company and Bank shall be relieved of any
obligation to continue payments to the Executive pursuant to the provisions of
this agreement.
22. NOTICES: For the purposes of this Agreement, notices and all
other communications provided for in the Agreement shall be in writing and shall
be deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Company:
Community Financial Group, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of Compensation Committee
with a copy to:
Xxxxxx & Xxxxxx LLP
1200 One Nashville Place
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Xx.
If to the Bank:
The Bank of Nashville
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Chairman of Compensation Committee
with a copy to:
Xxxxxx & Xxxxxx LLP
1200 One Nashville Place
000 0xx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, Xx.
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If to the Executive:
Xxxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
or at such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
23. MODIFICATION; WAIVERS APPLICABLE LAW: No provisions of this
Agreement may be modified, waived or discharged unless such waiver, modification
or discharge is agreed to in writing, signed by the Executive, and on behalf of
the Company by such officer as may be specifically designated by the Board of
Directors of the Company after approval of the modification by the Board of
Directors, and on behalf of the Bank by such officer as may be specifically
designated by the Board of Directors of the Bank after approval of the
modification by the Board of Directors. 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 which are not set forth expressly in this
Agreement. The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Tennessee.
24. INVALIDITY, ENFORCEABILITY: The invalidity or unenforceability
of any provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect. Any provision in this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
or affecting the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
25. ASSIGNMENTS: This Agreement is personal to the Executive, who
may not assign his obligations hereunder.
26. SUCCESSOR RIGHTS: This Agreement shall inure to the benefit of
and be
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binding upon the Company, its successors and assigns, the Bank, its successors
and assigns, and upon the Executive, and his personal or legal representatives,
executors, administrators, heirs, distributees, devisees and legatees. If the
Executive should die while any amounts would still be payable to him hereunder,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to his devisee, legatee or other designee or,
if there is no such designee, to his estate.
27. HEADINGS: Descriptive headings contained in this Agreement are
for convenience only and shall not control or affect the meaning or construction
of any provision hereof.
28. ARBITRATION: Any dispute, controversy or claim arising under
or in connection with this Agreement shall be settled exclusively by
arbitration, conducted before a panel of three arbitrators, in Nashville,
Tennessee, in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitrator's award in any court
having jurisdiction. Unless otherwise provided in the rules of the American
Arbitration Association, the arbitrators shall, in their award, allocate between
the parties the costs of arbitration, which shall include reasonable attorneys'
fees and expenses of the parties, as well as the arbitrator's fees and expenses,
in such proportions as the arbitrators deem just.
29. ENTIRE AGREEMENT: This Agreement represents the entire
understanding and agreement between the parties hereto with respect to the
subject matter hereof, and supersedes or amends all other agreements,
negotiations, understandings and representations (if any) made by and between
the parties hereto; provided, however, that nothing herein shall affect in any
way agreements granting or evidencing the Executive's options to acquire shares
of the Company.
30. REGULATORY AND OTHER PROCEEDINGS: The provisions of this
Section 30 shall control as to continuing rights and obligations under this
Agreement, notwithstanding any other provision of this Agreement, for as long as
they are required to be included in employment contracts between an institution
insured by the FDIC and its officers and as long as the Bank is such an insured
institution.
(a) If the Executive is suspended and/or temporarily
prohibited from participating in the conduct of the affairs of the Bank or the
Company by a notice served under applicable Federal or State statutes or
regulations, the Bank's obligations under this Agreement shall be suspended as
of the date of service, unless stayed by appropriate proceedings. If the charges
in the notice are dismissed, the Bank and the Company shall pay the Executive
all of the compensation withheld while their obligations hereunder were
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suspended and reinstate their obligations which were suspended.
(b) If the Executive is removed and/or permanently
prohibited from participating in the conduct of the affairs of the Bank or the
Company by an order issued under applicable Federal or State statutes or
regulations, all obligations of the Company and the Bank under this Agreement
shall terminate as of the effective date of the order, provided that vested
rights of the contracting parties shall not be affected.
(c) If the Company or the Bank become insolvent or taken
over by regulatory entities, all obligations under this Agreement shall
terminate as of the date of default, provided that this paragraph shall not
affect any vested rights of the contracting parties.
(d) All obligations under this Agreement may be
terminated, except to the extent determined that continuation thereof is
necessary for the continued operation of the Company or the Bank, by the FDIC at
the time the FDIC enters into an agreement to provide assistance to or on behalf
of the Bank or approves a supervisory merger to resolve problems related to
operation of the Bank, provided that any rights of the parties that have already
vested shall not be affected by such action.
31. SURVIVAL: This Agreement shall remain in effect
notwithstanding the termination of Executive's employment hereunder, and in any
case, the provisions of Sections 18, 19, and 20 shall survive any termination of
this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
EXECUTIVE:
/s/ XXXXXXX XXXXX
--------------------------------------
XXXXXXX XXXXX
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COMMUNITY FINANCIAL GROUP, INC.
By: /s/ J. Xxxxxx Xxxxxx
-----------------------------------
Name: J. Xxxxxx Xxxxxx
---------------------------------
Title: President & CEO
--------------------------------
THE BANK OF NASHVILLE
By: /s/ J. Xxxxxx Xxxxxx
-----------------------------------
Name: J. Xxxxxx Xxxxxx
---------------------------------
Title: President & CEO
--------------------------------
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