EXHIBIT 10.30
EMPLOYMENT AGREEMENT
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AGREEMENT by and between National Commerce Bancorporation, a Tennessee
corporation (the Company"), and Xxx X. Xxxxx (the "Executive") dated as of the
17/th/ day of March, 2000.
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
to assure that the Company will have the continued dedication of the Executive
pending the consummation of the transactions (the "Merger") contemplated between
the Company and CCB Financial Corporation, a North Carolina corporation ("CCB"),
pursuant to the Agreement and Plan of Merger dated as of March 17, 2000 between
the Company and CCB (the "Merger Agreement") and to provide the surviving
corporation after the Merger with continuity of management. Therefore, in order
to accomplish these objectives, the Board has caused the Company to enter into
this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean the "effective
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time" of the Merger as defined in the Merger Agreement.
2. Employment Period. The term of the Executive's employment under
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this Agreement shall be for a continually renewing term of three (3) years
without any further action by either the Company or the Executive, it being the
intention of the parties that there shall be continuously a term of three (3)
years duration of the Executive's employment under this Agreement unless the
Agreement is sooner terminated in accordance with its terms, provided that such
term shall terminate on the date the Employee becomes age 65 (the "Employment
Period").
3. Terms of Employment. (a) Position and Duties. (i) (A) During
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the Employment Period, the Executive shall serve in the position and with duties
and responsibilities as are set forth on Exhibit A hereto and (B) the
Executive's services shall be performed in Memphis, Tennessee.
(ii) During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the Executive agrees
to devote substantially all of his attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Employment Period it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to interfere
with the performance of the Executive's responsibilities to the Company.
(b) Compensation. (i) Base Salary. During the Employment Period,
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the Executive shall receive an annual base salary ("Annual Base Salary") in the
amount set forth on Exhibit A hereto. During the Employment Period, the Annual
Base Salary shall be reviewed no more than 12 months after the last salary
increase awarded to the Executive prior to the Effective Date and thereafter at
least annually. Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement. Annual Base
Salary shall not be reduced after any such increase and the term Annual Base
Salary as utilized in this Agreement shall refer to Annual Base Salary as so
increased.
(ii) Annual Bonus. In addition to the Annual Base Salary, during
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Employment Period, the Executive shall be eligible to receive an annual cash
bonus (the "Annual Bonus"), on the same basis as other senior officers of the
Company and in accordance with the bonus compensation policies and practices
established by the Company from time to time.
(iii) Incentive Awards. On the Effective Date, the Company
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shall grant the Executive the number of shares of restricted common stock of the
Company set forth on Exhibit A hereto (the "Restricted Stock") and a stock
option to acquire the number of shares of the Company's common stock set forth
on Exhibit A hereto (the "Option"), in each case pursuant to the terms of the
Company's stock incentive plan (the "Stock Plan"). The Option shall have a ten
year term from the date of grant, subject to earlier forfeiture upon termination
of the Executive's employment as provided in the option award agreement. The
Option shall have an exercise price equal to the fair market value of the stock
subject thereto on the date of grant. The Restricted Stock and the Option shall
vest in three equal installments, on each of the first, second and third
anniversaries of the Effective Date, provided, that, notwithstanding the
foregoing, the Restricted Stock and the Option shall immediately vest and be
exercisable or transferable upon a "change in control" of the Company (as
defined in the Stock Plan) following the Effective Date or upon the Executive's
termination of employment by the Company other than for Cause, including the
Executive's death or Disability, or by the Executive for Good Reason. The
number of shares of the Restricted Stock and the number of shares of common
stock underlying Option and the exercise price thereof shall be appropriately
and proportionately adjusted simultaneously with any changes in capitalization
or any reorganization of the Company, as provided for in the Stock Plan.
(iv) Other Employee Benefit Plans. During the Employment Period,
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except as otherwise expressly provided herein, the Executive shall be entitled
to participate in all employee benefit, retirement, welfare and other plans,
practices, policies and programs applicable to the other senior officers of the
Company or its affiliated companies on a basis no less favorable than that
provided to the other senior officers of the Company or its affiliated companies
and, provided that, in no event shall such plans, practices, policies and
programs be less favorable in the aggregate than the plans, practices, policies
and programs in which the Executive was eligible to participate immediately
prior to the Effective Date. During the Employment Period, the Company shall
continue to maintain the split-dollar life insurance policy for the Executive on
the terms and conditions as in effect immediately prior to the Effective Date.
Effective as of the Effective Date, the Executive and the Company shall enter
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into a change of control employment agreement substantially in the form attached
hereto as Exhibit B. As used in this Agreement, the terms "affiliated companies"
and "affiliates" shall include any company controlled by, controlling or under
common control with the Company.
(v) Expenses. During the Employment Period, the Executive shall be
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entitled to receive prompt reimbursement for all reasonable expenses incurred by
the Executive in accordance with the Company's policies.
(vi) Fringe Benefits. During the Employment Period, the Executive
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shall be entitled to fringe benefits, to the extent applicable to other senior
officers of the Company or its affiliated companies.
(vii) Vacation. During the Employment Period, the Executive shall be
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entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company and its affiliated companies as in effect with respect
to other senior officers of the Company or its affiliated companies.
4. Termination of Employment. (a) Death or Disability. The Executive's
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employment shall terminate automatically upon the Executive's death during the
Employment Period. If the Company determines in good faith that the Disability
of the Executive has occurred during the Employment Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 11(b) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to full-
time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative, subject to
(i) the Company's obligations and the Executive's rights under (A) the Americans
with Disabilities Act, 42 U.S.C. Sections 1210 et seq., and (B) the Family and
Medical Leave Act, 29 U.S.C. Sections 2601 et seq. (and the regulations
promulgated under the foregoing Acts), and (ii) the exclusion from such 180
business day calculation of any business days constituting vacation days under
Section 3(b)(vii).
(b) Cause. The Company may terminate the Executive's employment during the
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Employment Period for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) the continued and willful failure of the Executive to perform
substantially the Executive's duties with the Company (other than any such
failure resulting from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to the Executive by the
Board or the Chief Executive Officer of the Company which specifically
identifies the manner in which the Board or Chief Executive Officer believes
that the Executive has not substantially performed the Executive's duties, or
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(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company, or
(iii) conviction of a felony or the entry of a guilty or nolo contendere
plea by the Executive with respect thereto.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or upon the instructions of the Chief Executive Officer or
a senior officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be done, by the
Executive in good faith and in the best interests of the Company. The cessation
of employment of the Executive shall not be deemed to be for Cause unless and
until there shall have been delivered to the Executive a copy of a resolution
duly adopted by the affirmative vote of not less than two-thirds of the entire
membership of the Board at a meeting of the Board called and held for such
purpose (after reasonable notice is provided to the Executive and the Executive
is given an opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the Executive is guilty of
the conduct described in subparagraph (i) or (ii) above, and specifying the
particulars thereof in detail.
(c) Good Reason. The Executive's employment may be terminated by the
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Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties inconsistent in any
material respect with the Executive's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities as
contemplated by Section 3(a)(i) and Exhibit A of this Agreement, or any other
action by the Company which results in a material diminution in such position,
authority, duties or responsibilities, excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(ii) any material failure by the Company to comply with any of the
provisions of Section 3(b) of this Agreement, other than an isolated,
insubstantial and inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Executive;
(iii) the Company's requiring the Executive to be based at an office or
location more than 35 miles from that set forth in Section 3(a)(i) hereof;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy Section
10(c) of this Agreement.
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(d) Notice of Termination. Any termination by the Company for Cause, or by
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the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 11(b) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstance which contributes to
a showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) Date of Termination. "Date of Termination" means (i) if the
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Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
5. Obligations of the Company upon Termination. (a) Good Reason; Other
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Than for Cause, Death or Disability. If, during the Employment Period, the
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Company shall terminate the Executive's employment other than for Cause, death
or Disability or the Executive shall terminate employment for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash within
30 days after the Date of Termination the aggregate of the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date
of Termination to the extent not theretofore paid, (2) the product of (x)
the Annual Bonus paid or payable to the Executive in respect of the fiscal
year ending immediately prior to the Date of Termination including any
bonus or portion thereof which has been earned but deferred (and annualized
for any calendar year consisting of less than twelve full months or during
which the Executive was employed for less than twelve full months) (such
amount being referred to as the "Recent Annual Bonus") and (y) a fraction,
the numerator of which is the number of days in the current calendar year
through the Date of Termination, and the denominator of which is 365, and
(3) any compensation previously deferred by the Executive (together with
any accrued interest or earnings thereon) to the extent not theretofore
paid (the sum of the amounts described in clauses (1), (2) and (3) shall be
hereinafter referred to as the "Accrued Obligations"); and
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(B) the amount equal to the product of (1) the number of months
and portions thereof from the Date of Termination until the expiration
of the Employment Period (the "Continuation Period"), divided by
twelve, and (2) the sum of (x) the Executive's Annual Base Salary and
(y) the Recent Annual Bonus;
(ii) the Option shall become immediately and fully exercisable
and the restrictions on the Restricted Stock shall lapse immediately;
(iii) for the duration of the Continuation Period, the Executive
and the Executive's dependents shall continue to be eligible to participate in
the medical, dental and health benefit plans and arrangements applicable to the
Executive immediately prior to the Date of Termination on the same terms and
conditions as in effect for the Executive and the Executive's dependents
immediately prior to the Date of Termination; and
(iv) to the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to receive
under any plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies through the Date of Termination (such other
amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(b) Death. If the Executive's employment is terminated by reason of the
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Executive's death during the Employment Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations and the timely payment
or provision of Other Benefits. In addition, the Option shall become
immediately and fully exercisable and the restrictions on the Restricted Stock
shall lapse immediately. Accrued Obligations shall be paid to the Executive's
estate or beneficiary, as applicable, in a lump sum in cash within 15 days of
the Date of Termination. With respect to the provision of Other Benefits, the
term Other Benefits as utilized in this Section 5(b) shall include death
benefits as in effect on the date of the Executive's death with respect to
senior officers of the Company, provided that such benefits shall consist of no
less than a payment to the Executive's surviving spouse or to the executor or
administrator of the Executive's estate (if his spouse shall not survive him) of
an amount equal to two times his Annual Base Salary, such death benefit to be
paid in forty-eight (48) equal monthly installments commencing on the first day
of the month following the date of death of the Executive. Without limiting the
foregoing, for one year after the Executive's death, the Company shall pay any
premium required for any "qualified beneficiary" to continue his or her health
care coverage in accordance with Title I, Part 6 of the Employee Retirement
Income Security Act of 1974, as amended.
(c) Disability. If the Executive's employment is terminated by reason of
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the Executive's Disability during the Employment Period, this Agreement shall
terminate without further obligations to the Executive, other than for payment
of Accrued Obligations and the timely payment or provision of Other Benefits.
In addition, the Option shall become immediately and fully exercisable and the
restrictions on the Restricted Stock shall lapse immediately. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 15 days
of the Date of Termination. With respect to the provision of Other Benefits,
the term
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Other Benefits as utilized in this Section 5(c) shall include, and the Executive
shall be entitled after the Disability Effective Date to receive, disability and
other benefits as in effect at any time thereafter generally with respect to
other senior officers of the Company.
(d) Cause; Other than for Good Reason. If the Executive's employment shall
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be terminated for Cause or the Executive terminates his employment for other
than Good Reason or on account of death or Disability during the Employment
Period, this Agreement shall terminate without further obligations to the
Executive other than the obligation to pay to the Executive (y) the Accrued
Obligations, less the amount determined under Section 5(a)(i)A(2) hereof, and
(z) Other Benefits, in each case to the extent theretofore unpaid.
6. Non-exclusivity of Rights. Except as specifically provided, nothing
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in this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor,
subject to Section 11(f), shall anything herein limit or otherwise affect such
rights as the Executive may have under any contract or agreement with the
Company or any of its affiliated companies. Amounts which are vested benefits or
which the Executive is otherwise entitled to receive under any plan, policy,
practice or program of or any contract or agreement with the Company or any of
its affiliated companies at or subsequent to the Date of Termination shall be
payable in accordance with such plan, policy, practice or program or contract or
agreement except as explicitly modified by this Agreement.
7. Full Settlement. The Company's obligation to make the payments provided
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for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay as incurred, to the full extent permitted by law, all
legal fees and expenses which the Executive may reasonably incur as a result of
any contest (regardless of the outcome thereof) by the Company, the Executive or
others of the validity or enforceability of, or liability under, any provision
of this Agreement or any guarantee of performance thereof (including as a result
of any contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
8. Certain Additional Payments by the Company. (a) Anything in this
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Agreement to the contrary notwithstanding, in the event it shall be determined
that any payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable pursuant to
the terms of this Agreement or otherwise, but determined without regard to any
additional payments required under this Section 8) (a "Payment") would be
subject to the excise tax imposed by Section 4999 of the Code or any interest or
penalties are incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive shall be
entitled to receive an additional payment (a "Gross-Up Payment") in an amount
such that after payment by the Executive of all taxes (including any interest or
penalties imposed with respect to such taxes), including, without limitation,
any income taxes (and any interest and penalties
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imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments.
(b) Subject to the provisions of Section 8(c), all determinations required
to be made under this Section 8, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to be
utilized in arriving at such determination, shall be made by Ernst & Young LLP
or such other certified public accounting firm reasonably acceptable to the
Company as may be designated by the Executive (the "Accounting Firm") which
shall provide detailed supporting calculations both to the Company and the
Executive within 15 business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely by
the Company. Any Gross-Up Payment, as determined pursuant to this Section 8,
shall be paid by the Company to the Executive within five days of the receipt of
the Accounting Firm's determination. Any determination by the Accounting Firm
shall be binding upon the Company and the Executive. As a result of the
uncertainty in the application of Section 4999 of the Code at the time of the
initial determination by the Accounting Firm hereunder, it is possible that
Gross-Up Payments which will not have been made by the Company should have been
made ("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant to
Section 8(c) and the Executive thereafter is required to make a payment of any
Excise Tax, the Accounting Firm shall determine the amount of the Underpayment
that has occurred and any such Underpayment shall be promptly paid by the
Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of the Gross-Up Payment. Such notification shall be given as soon as
practicable but no later than ten business days after the Executive is informed
in writing of such claim and shall apprise the Company of the nature of such
claim and the date on which such claim is requested to be paid. The Executive
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is due).
If the Company notifies the Executive in writing prior to the expiration of such
period that it desires to contest such claim, the Executive shall:
(i) give the Company any information reasonably requested by the
Company relating to such claim,
(ii) take such action in connection with contesting such claim as the
Company shall reasonably request in writing from time to time, including,
without limitation, accepting legal representation with respect to such claim by
an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order effectively to
contest such claim, and
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(iv) permit the Company to participate in any proceedings relating to
such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest and shall indemnify and hold the Executive harmless, on an
after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions
of this Section 8(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct the Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and the Executive agrees to prosecute such
contest to a determination before any administrative tribunal, in a court of
initial jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify and hold
the Executive harmless, on an after-tax basis, from any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to
such advance or with respect to any imputed income with respect to such advance;
and further provided that any extension of the statute of limitations relating
to payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company's control of the contest shall be limited to
issues with respect to which a Gross-Up Payment would be payable hereunder and
the Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If, after the receipt by the Executive of an amount advanced by the
Company pursuant to Section 8(c), the Executive becomes entitled to receive any
refund with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 8(c)) promptly pay to the Company the
amount of such refund (together with any interest paid or credited thereon after
taxes applicable thereto). If, after the receipt by the Executive of an amount
advanced by the Company pursuant to Section 8(c), a determination is made that
the Executive shall not be entitled to any refund with respect to such claim and
the Company does not notify the Executive in writing of its intent to contest
such denial of refund prior to the expiration of 30 days after such
determination, then such advance shall be forgiven and shall not be required to
be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-Up Payment required to be paid.
9. Confidential Information/Noncompetition. (a) The Executive
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recognizes and acknowledges that he has and will have access to confidential
information concerning the Company and its affiliates of a special and unique
value which includes (but is not limited to) the books and records relating to
operation, finance, accounting, loans, investments, personnel and management,
written policies and other printed matter relating particularly to operations
such as customer names and addresses and customer financial information. The
Executive also recognizes that a portion of the Company's business is dependent
upon a large number of trade secrets, including secret formulations, techniques,
methods, processes, data and the like. The
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Executive acknowledges and agrees that protection of these trade secrets and
confidential information against unauthorized disclosure and use is of critical
importance to the Company, and the Executive therefore agrees that he will not
at any time, either while employed by the Company or afterwards, make any
independent use of, or knowingly disclose to any other person or organization
(except as required by regulatory authority or by a court or as authorized by
the Company) any of the trade secrets or other confidential proprietary
information of the Company or its affiliates, whether patentable or not.
(b) The Executive recognizes that in the highly competitive business in
which the Company is engaged, personal contact is of primary importance in
securing new customers and in retaining the accounts and goodwill of present
customers and protecting the business of the Company. The Executive, therefore,
agrees that at all times while employed by the Company and for a period of two
(2) years after the termination of his employment, the Executive will not, for
himself or on behalf of any person, corporation, association or other entity
other than the Company: (i) engage in the commercial banking business within any
county in any state in which the Company or any of its affiliates either
maintains an office or is engaged in the commercial banking business that
produced in excess of 5% of the net income after tax of the Company on a
consolidated basis for the twelve months prior to the date of termination of
employment; or (ii) directly or indirectly solicit or attempt to solicit
business from any customer of the Company or any of its affiliates existing on
the date of termination of employment.
(c) If the provisions of this Section 9 are violated or threatened to be
violated, in whole or in part, the Company shall be entitled, upon application
to any court of proper jurisdiction, to a temporary restraining order or
preliminary injunction (without the necessity of posting any bond with respect
thereto) to restrain and enjoin the Executive from such violation without
prejudice to any other remedies the Company may have at law or in equity.
Further, in the event that the provisions of this Section 9 should ever be
deemed to exceed the time geographic, temporal or occupational limitations
permitted by the applicable laws, the Executive and the Company agree that such
provisions shall be and are hereby reformed to the maximum time, geographic,
temporal or occupational limitations permitted by the applicable laws. The
provisions of this Section 9 shall survive the termination of the Executive's
employment or expiration or the termination of this Agreement.
10. Successors. (a) This Agreement is personal to the Executive and
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without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in
this Agreement, "Company" shall mean the Company as
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hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
11. Miscellaneous. (a) This Agreement shall be governed by and construed
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in accordance with the laws of the State of Tennessee, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive:
-------------------
At the most recent address on file
for the Executive at the Company.
If to the Company:
-----------------
National Commerce Bancorporation
Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state, local or foreign taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4(c)(i)-(v) of this Agreement, shall not be deemed to be a
waiver of such provision or right or any other provision or right of this
Agreement.
(f) From and after the Effective Date, this Agreement shall supersede any
other employment, severance or change of control agreement (other than the
agreement substantially in the form attached hereto as Exhibit B) between the
parties, whether written or oral, with respect to the subject matter hereof.
(g) This Agreement may be executed in counterparts, which together shall
constitute one and the same original.
-11-
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's
hand and, pursuant to the authorization from its Board of Directors, the Company
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
___________________________________
Xxx X. Xxxxx
NATIONAL COMMERCE BANCORPORATION
___________________________________
By:
Title:
Exhibit A
---------
Name: Xxx X. Xxxxx
Position and Duties of the Executive: Executive Vice President of the non-
banking business of the Company, reporting to the President and Chief Executive
Officer of the non-banking business of the Company, with such authority, duties
and responsibilities as are commensurate with such position and as may be
consistent with such position
Annual Base Salary: $175,000
Number of Shares of Common
Stock underlying the Options: 60,000
Number of Shares of Restricted Stock: 20,000
