Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") made this 13th day of December,
2000, by and between CAPITAL BANK AND TRUST COMPANY, a Tennessee state-chartered
bank, with principal offices located in Nashville, Tennessee (the "Bank") and H.
XXXXXX XXXXXXX, III, of Nashville, Tennessee (the "Executive"). As used herein,
"Effective Date" means January 1, 2001.
WITNESSETH:
WHEREAS, the Executive is an effective and highly-valued member of the
senior management of the Bank currently serving as Executive Vice President of
the Bank; and
WHEREAS, the Bank recognizes the value of the Executive's services and
desires to insure the Executive's continued employment with the Bank; and
WHEREAS, the Executive wishes to continue in the employment of the
Bank; and
WHEREAS, the Bank and the Executive mutually desire that their
employment relationship be set forth under the terms of a written employment
agreement;
NOW, THEREFORE, in consideration of the foregoing and of the promises
and mutual agreements set forth below, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows :
1. EMPLOYMENT. The Bank agrees to continue to employ the Executive, and
the Executive agrees to continue to serve the Bank, on the terms and conditions,
set forth herein. The Executive shall have the right to resign at any time and
the Bank shall have the right to terminate the Executive's employment and remove
the Executive at any time, but such removal shall not affect the Executive's
right to recover unpaid salary for the remainder of the term of this Agreement,
to recover all other unpaid amounts to and through the end of the calendar month
of termination, and so forth, nor shall any early resignation affect the Bank's
right to enforce the noncompetition, nonsolicitation, and nondisclosure
provisions of this Agreement, and so forth.
2. TERM OF EMPLOYMENT. The term of this Agreement ("Term") shall
commence on the Effective Date and continue for two (2) consecutive years after
the Effective Date. However, the Term of this Agreement shall automatically be
extended for an additional year effective on each anniversary of the Effective
Date (the "Extended Term") unless, not less than October 1st of any year during
the Term or Extended Term hereof, the Bank shall have delivered to the Executive
or the Executive shall have delivered to the Bank written notice that the Term
or Extended Term of the Executive's employment hereunder shall not be extended.
3. POSITION AND DUTIES. The Executive shall serve as Executive Vice
President with responsibilities and authority as may from time to time be
assigned to him by the Chief Executive Officer of the Bank. The Executive's
duties and authority shall be consistent with those of the executive vice
president of a community bank with responsibility for the Bank's investments and
asset-liability management, subject to adjustment by the Chief Executive Officer
from time to time. The Executive shall devote substantially all of his working
time and efforts to the business affairs of the Bank.
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4. PLACE OF PERFORMANCE. In connection with the Executive's employment
hereunder, the Executive shall be based at the Bank's principal offices located
in Nashville, Tennessee, subject to reasonable business travel, as mutually
agreed to by the Executive and the Bank.
5. COMPENSATION AND BENEFITS. In consideration of the Executive's
performance of his duties hereunder, the Bank shall provide the Executive with
the following compensation and benefits during the Term and any Extended Term of
his employment hereunder. As used in this Section 5, reference to "Bank" in
subsections (c) through (f) of this Section 5 means also any parent bank holding
company and any affiliates of such parent bank holding company (collectively,
the "Company").
(a) BASE SALARY. The Bank shall pay to the Executive an initial base
salary of not less than One Hundred Ten Thousand Two Hundred Fifty Dollars
($110,250.oo) per annum (the "Base Salary"). The said base salary shall be paid
in arrears in equal installments as nearly as practicable upon the last day of
each calendar month. Such base salary may be increased from time to time in
accordance with the normal business practices of the Bank. Further, the
Executive's base salary shall be increased each additional year of the
Executive's employment effective January 1, 2001, and January 1 of each
additional year by an amount not less than five percent (5%) of the Executive's
Base Salary as of January 1 of the preceding year. Any and all increases to the
base salary shall constitute a new "base salary." Such base salary (as increased
from time to time) shall not be decreased during the Term or any Extended Term
and shall be referred to in this Agreement as the "Base Salary."
(b) BONUS AND INCENTIVE COMPENSATION. The Bank shall pay to the
Executive with respect to each fiscal year during the term of the Executive's
employment hereunder, such cash bonus as the Board of Directors of the Bank
(exclusive of the Executive) shall determine in its sole discretion; provided,
however, in no event shall this subsection (b) be deemed to require that any
such bonus be paid at any time. In addition, the Executive shall have the right
to participate in any incentive compensation plan in effect at the Bank during
the Term or any Extended Term without diminution of any other compensation or
benefit provided for in this Agreement. No bonus shall be considered a part of
the Base Salary unless the Board, by resolution or otherwise, so determines from
time to time.
(c) EXPENSES. The Bank shall promptly reimburse the Executive for all
reasonable out-of-pocket expenses incurred by the Executive in his performance
of services hereunder, including all reasonable expenses of travel and living
expense while away from home on business of the Bank, provided that such
expenses are incurred and accounted for in accordance with the generally
applicable, regular policies and procedures established by the Bank from time to
time.
(d) EMPLOYEE BENEFITS. To the extent that, from time to time, the Bank
maintains in effect one or more bonus or benefit plans or arrangements
applicable to senior officers and/or to employees generally, the Executive shall
be entitled to participate in all of the same. As used herein, the term "senior
officers" means officers of the Bank holding titles of vice president or above,
and the term "plans or arrangements" means and includes, but is not limited to,
any employee pension benefit plan, stock option plan, life insurance and
health-and-accident plan, medical insurance plan, disability income plan,
vacation plan, and any comparable plan or arrangement. The Bank shall not make
any changes in such plans or arrangements which would adversely affect the
Executive's rights or benefits thereunder unless such change occurs pursuant to
a program applicable to all senior officers of the Bank and does not result in a
proportionally greater reduction in the rights or benefits of the Executive as
compared with any other senior officer of the Bank. However, the Bank shall be
free to make good faith, non-discriminatory changes in (including terminations
of) its employee benefit plans and arrangements from time to time in the
ordinary course of its business. The Executive shall be entitled to participate
in or receive benefits under any current or future employee benefit plan or
arrangement made available by the Bank to its employees or senior officers
(whether or not inclusive of Bank employees generally), subject to and on a
basis consistent with the terms, conditions and overall administration of such
plans and arrangements. Neither coverage nor benefits paid under any such plan
or arrangement presently in effect or made available in the future shall be
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deemed to be in lieu of the Base Salary payable to the Executive under
subsection (a) of this Section 5. Any payment or other benefits provided the
Executive under any such plan or arrangement with respect to any plan year
during which the Executive is employed hereunder for less than the full plan
year shall be prorated in accordance with the number of days of such plan year
during which he is so employed, unless otherwise provided in the pertinent plan
or arrangement. The Executive's entitlement hereunder shall include the method
of cost-sharing, if any, in effect under the pertinent plan or arrangement at
the relevant time.
(e) VACATIONS. The Executive shall be entitled to the number of
vacation days in each calendar year, and to compensation in respect of earned
but unused vacation days, determined in accordance with the Bank's vacation plan
that is in effect on the Effective Date and applicable to the Executive, as well
as to all paid holidays provided by the Bank to its senior officers. A copy of
the Bank's Personnel Policy in effect on the Effective Date with respect to
vacation days and holidays is attached hereto as Exhibit A and incorporated
herein by reference.
(f) SERVICES. The Bank shall furnish the Executive with office space,
secretarial and administrative assistance, and such other facilities and
services as shall be suitable to his position as executive vice president for
investments and asset-liability management and adequate for the performance of
his duties hereunder.
(g) AUTOMOBILE. The Bank shall furnish the Executive with an
automobile, the fair market value of which shall be not less than the amount
that results in a monthly lease payment of $550.00for a thirty-six (36) month
lease. The Executive shall be entitled to a new automobile every three (3)
years. Said automobile shall be purchased or leased upon approval of the
Executive and shall contain such options as shall be reasonably requested by the
Executive. The Bank shall pay for fuel, shall provide for the ongoing customary
and needed maintenance and repair of the automobile, and shall provide for
adequate automobile insurance, including collision and uninsured motorist
coverage as well as any other insurance coverage required under the laws of
Tennessee.
(h) COUNTRY CLUB. The Bank shall pay all customary dues for maintaining
the Executive's membership in the Belle Xxxxx Country Club. In addition, the
Bank shall pay all federal and state income taxes incurred by the Executive as a
result of the payment of said dues on behalf of the Executive. The Executive
agrees to use this membership in significant part to advance the interests of
the Company. The Executive shall not charge the Bank for the use of his
membership.
(i) CONVENTIONS AND CONTINUING EDUCATION. The Bank agrees to assist and
support the Executive in maintaining and enhancing his professional education
and associations. In this regard, the Bank shall reimburse the Executive for all
reasonable travel, accommodations and out-of-pocket expenses incurred in
attending a reasonable number of banking conventions, meetings and educational
programs as selected by the Executive during each year of the Term or any
Extended Term.
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6. DIRECTORSHIP. The Bank agrees to cause the Executive to be nominated
for election to its Board of Directors of the Bank and any Parent Company of the
Bank during the Term and any Extended Term. However, the Executive may, without
violating this Agreement, decline to serve or resign from the Board of either or
both of the Bank and the Parent Company at any time. In such event, if the
Executive declines to serve or resigns as a director of the Bank and/or the
Parent Company, the Bank and/or the Parent Company (as applicable) shall have no
further obligation to nominate him for election as a director of either the Bank
or Parent Company at any future meeting of shareholders at which the election of
directors is considered.
7. COMPENSATION AND BENEFITS IN THE EVENT OF TERMINATION. In the event
of the termination of the Executive's employment by the Bank during the Term or
any Extended Term of this Agreement, or in the event the Executive's Term or any
Extended Term of Employment is not extended as provided in Section 2,
compensation and benefits shall be paid as set forth below.
(a) TERMINATION BY BANK FOR CAUSE. The Bank may terminate the
Executive's employment under this Agreement for cause pursuant to notice in
writing to Executive, specifying such cause with reasonable particularity.
Executive shall have ten (10) days from receipt thereof in which to cure the act
or omission complained of, unless the act or omission of its very nature cannot
be cured within such period, in which event if the Executive shall have begun
diligently working to cure such act or omission during such period, then the
Executive shall have a reasonable period of time to effect such cure so long as
the Executive continues to work diligently and in good faith to accomplish such
cure. If no cure has been or can be effected within the time allowed, the
Executive's rights, and the Bank's obligations, under this Agreement shall
thereupon terminate.
For purposes hereof, "cause" shall be limited to:
(i) Deliberate falsification by Executive of any records or
reports, or any material act of self- dealing between Bank and
Executive which is not disclosed in full to, and approved by,
the Bank;
(ii) Fraud on the part of Executive against the Bank or any
subsidiary or affiliate; and/or theft, embezzlement or
misappropriation by Executive of any funds of Bank, or
conviction of any felony;
(iii) Deliberate breach of a Bank policy the result of which is to
materially damage or threaten the Bank and/or the Board,
including the execution of any document transferring, or
creating any material liens or encumbrance on, any material
property of the Bank, not in the ordinary course of business,
without authorization of the Bank's Executive Committee or the
Board of Directors of the Bank; and/or
(iv) Disability (as herein defined).
No breach of policy shall alone be the grounds for termination so long as it
does not, alone, constitute "cause" other than as a breach of policy or does not
subject either the Bank (or its Parent Company, if any) or the Board of
Directors (or one or more members thereof) to unreasonable risk or damage.
As used herein, "Disability" means the substantial mental or physical
disability of the Executive for a period of more than six full, consecutive
calendar months or more than seven full calendar months in any twelve
consecutive month period.
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In the event of Executive's termination for cause, all compensation and
benefits due under this Agreement shall terminate thirty (30) days from the
effective date of termination.
It is agreed, however, that except for an occasion in which the Bank,
in the exercise of its reasonable discretion, believes that Executive's removal
upon the aforesaid ten (10) days' notice is necessary for the protection of the
Bank, the Bank shall give Executive written notice of the violation or reason
that it desires to terminate him and at least sixty (60) calendar days
(exclusive of Federal and State holidays) to reasonably cure any violation or to
address any other ground stated by the Bank in its written notice. The Bank's
written notice shall describe the facts and circumstances of the alleged breach
or violation in reasonable detail. The Bank's determination in this regard, as
to whether the Executive needs to be removed immediately, shall be given great
deference if it is reasonable under circumstances perceived by the Bank at that
time. However, the Bank's determination of whether or not there has been a
breach by the Executive shall not be subject to such deference.
Any notice from the Bank to Executive concerning a "cause" for removal
shall be deemed a demand for cure of the asserted breach or violation. The Bank
may terminate the Executive for the reasons specified in subsections (a)(i) and
(a)(ii) of this Section 7 immediately upon sending the Executive written notice
describing the facts and circumstances of the breach or violation in reasonable
detail, but without giving Executive the opportunity to cure such violation(s)
or breach(es). If the Executive is acquitted, not convicted, or otherwise
prevails in respect of the charges described in such subsections, he shall be
entitled to either (x) back pay and reinstatement or (y) back pay plus the
Termination Payment (as herein defined in subsection (d)) of this Section 7, at
his election, and the noncompetition provisions of Section 9 shall not apply
unless the Executive chooses reinstatement under (x) above, together with (z) a
public apology by the Bank and any other applicable component of the Company.
The Executive shall be entitled to the Termination Payment, together
with interest thereon at the maximum judgment rate of interest, if the Bank
terminates Executive's employment for any reason other than those set forth in
this subsection (a) of this Section 7. Except as otherwise expressly provided in
this Agreement, if the Bank properly terminates Executive pursuant to this
Section for the reasons specified in subsection (a) of this Section 7, the
noncompetition provisions of Section 9 shall apply; otherwise, those
noncompetition provisions shall not apply.
(b) TERMINATION BY THE EXECUTIVE FOR CAUSE. The Executive shall be
authorized to terminate his employment under this Agreement "for cause" for the
following reasons:
(i) The Bank or the Parent Company commits a material breach or
violation of this Agreement, including any attempt to reassign
the Executive to a different office or geographic area, which
is not cured before the expiration of thirty (30) calendar
days after written notice from Executive describing the facts
and circumstances of the breach or violation in reasonable
detail. Such notice shall be deemed a demand for cure of the
breach or violation; and/or
(ii) The Bank or any other part of the Company persists, for a
period of thirty (30) calendar days after written notice from
Executive describing in reasonable detail the matter as to
which he is complaining, in any attempt to require Executive
to perform (or omit to perform) any act or engage (or omit to
engage) in any conduct that would constitute illegal conduct
or omission. Such notice shall be deemed a demand for the Bank
to cease any such attempt; and/or
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(iii) There occurs a Change in Control (as herein defined) of the
Bank or its Parent Company (if any). As used herein, a "Change
in Control" of the Bank and/or any Parent Company of the Bank
shall be deemed to have occurred if and when, with or without
the approval of the Board of the Bank (or of such Parent
Company) incumbent prior to the occurrence: (1) more than 35%
of the outstanding securities entitled to vote in an election
of Directors of the Bank (or such Parent Company) shall be
acquired by any person (as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended);
or (2) as the result of a tender offer, merger, consolidation,
sale of assets or contested election or any combination of
such transactions, the persons who were Directors of the Bank
(or its Parent Company) immediately before the transaction
shall cease to constitute a majority of the Board.
The interpretation of this Change in Control definition shall
be in accordance with the change in bank control regulations
and other applicable rules, regulations and interpretations of
the Federal Deposit Insurance Corporation as in effect from
time to time during the Term or any Extended Term of this
Agreement. In addition, a Change in Control shall be deemed to
have occurred upon any merger, consolidation or reorganization
to which the Bank (or an entity controlled thereby) is a
party, but is not a surviving entity; or upon the sale of all
or substantially all of the assets of the Bank or any Parent
Company. The Executive's right to resign for cause as a result
of a Change in Control shall be operative when there has been,
in fact, a change in control from that in effect on the
Effective Date of this Agreement.
If the Bank forms a one bank holding company to restructure
its then current ownership into a holding company structure,
that alone shall not constitute a Change in Control for the
purposes of this Agreement. If the Bank becomes a subsidiary
of a bank holding company, the interpretation of this Change
in Control definition shall thereafter be in accordance with
Regulation Y of the Board of Governors of the Federal Reserve
System ("FRB") and other applicable FRB rules, regulations and
interpretations as in effect from time to time during the Term
or any Extended Term of this Agreement.
The intent of this Change in Control provision is to provide
protection for Executive against changes in control and
ownership, Executive having contracted herein to be employed
by the Bank (or a Parent Company created by the then-incumbent
Bank Board at least of majority of whom are members of the
Bank's Board on the Effective Date) and having stated his
desire to be protected against changes in control.
Once a Change in Control has been finally consummated, then
the Executive shall have six months from the date of such
final consummation to terminate his employment under this
Agreement and, which resignation shall be deemed to be for
cause. By such resignation for cause, the Executive is
entitled to demand the Termination Payment and other benefits
and bargains due to him. If the Executive does not resign
within such six months, then the particular Change in Control
shall be deemed to have been waived by the Executive. The
Executive shall have a reasonable degree of latitude and
discretion in determining the effective date of the
consummation of a change in control. Unless it reasonably
appears that the resignation or retirement of directors of the
Bank or any Parent Company is related to a Change in Control
transaction (such as, but not limited to a merger, tender
offer, reverse stock split or disposition of assets), then the
resignation or retirement of directors of the Bank or any
Parent Company shall not alone be deemed to be a Change in
Control for purposes of this part of this Agreement.
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Any written notice from the Executive to the Bank or to any Parent
Company concerning a "cause" for resignation by the Executive shall be deemed a
demand for cure of the asserted breach or violation. The notice shall describe
the asserted breach or violation by the Bank or any Parent Company in reasonable
detail. The Executive shall afford the Bank and/or Parent Company a reasonable
time, not to be less than thirty days, to cure any violation. If no cure has
been or can be effected within the time allowed, (a) the Bank's and the Parent
Company's rights, and the Executive's obligations, under this Agreement shall
thereupon terminate and (b) the Executive shall be entitled to the Termination
Payment describe in subsection (d) of this Section 7. Further, if Executive
terminates his employment pursuant to this subsection (b), the noncompetition
provisions of Section 9 shall terminate and shall not bind the Executive.
(c) TERMINATION BY EITHER PARTY FOR NON-CAUSE OR OTHER REASONS. Either
party may terminate this Agreement upon ninety (90) days written notice to the
other party for any reason. Termination pursuant to this section shall be
referred to as a "Non-Cause Termination." Specifically, a "Non-Cause
Termination" shall be any termination of the Executive's employment other than
by the Bank for cause, as defined in subsection (a), or by the Employee for
cause, as defined in subsection (b), of this Section 7.
(i) Non-Cause Termination by Executive. In the event of
termination pursuant to this subsection (c) by the Executive,
all compensation and benefits due under this Agreement shall
terminate on the effective date of termination. If the
Executive terminates his employment pursuant to this
subsection (c), the noncompetition provisions of Section 9
shall apply.
(ii) Non-Cause Termination by Bank. In the event of termination of
the Executive's employment by the Bank pursuant to this
subsection (c), the Bank shall pay the Executive liquidated
damages equal to the "Termination Payment" and all other
benefits specified in subsection (d) of this Section 7; and
the noncompetition provisions of Section 9 shall not apply.
(d) TERMINATION PAYMENT, ETC. In the event of a Non-Cause Termination
by the Bank pursuant, or in the event of a for cause termination by the
Executive (including a termination based on a Change in Control of the Bank or
any Parent Company of the Bank), the Bank shall pay to the Executive in a lump
sum, in cash, without discount, on or before the thirtieth (30th) day following
the date of termination, an amount equal to 2.99 times the aggregate annual Base
Salary then being paid or that is then payable to the Executive by the Bank
(inclusive of all amounts due to the Executive under this subsection (d), the
"Termination Payment").
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In addition to the lump sum cash payment, the term "Termination
Payment" includes, and the Executive shall be entitled to receive an additional
sum of money (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 imposed with respect thereto) including those imposed upon the
Gross-Up Payment, the Executive shall have an amount equal to the full lump sum
payment. All determinations required to be made under this subsection (d),
including the amount of the Gross-Up Payment and the assumptions to be utilized
in arriving at such determination, shall be made by the Bank's independent
certified public accounting firm or such other certified public accounting firm
reasonably acceptable to the Bank as may be designated by the Executive (the
"Accounting Firm") which shall provide supporting calculations in reasonable
detail, both to the Bank and the Executive within thirty (30) business days of
receipt of notice from the Executive that there has been a Payment, or such
earlier time as is requested by the Bank. Any Gross-Up Payment, as determined
pursuant to this Section, shall be paid by the Bank to the Executive within five
(5) days of (i) the later of the due date for the payment of any Excise Tax, and
(ii) the receipt of the Accounting Firm's determination. Any good faith
determination by the Accounting Firm shall be binding upon the Bank and the
Executive;
However, if the lump sum payment under this section either alone or
together with other payments which the Executive has the right to receive from
the Bank (including the Gross Up Payment), would constitute a "parachute
payment" (as defined in Section 280G of the Internal Revenue Code of 1954, as
amended (the "Code"), such lump sum severance payment shall be reduced to the
largest amount as will result in no portion of the lump sum severance payment
under this Section 7 being subject to the excise tax imposed by Section 4999 of
the Code. The Accounting Firm shall provide supporting calculations in
reasonable detail, both to the Bank and the Executive within thirty (30)
business days of receipt of a written request from either the Bank or the
Executive. The determination of any reduction in the lump sum severance payment
under this section, pursuant to the foregoing provision shall be made by the
Accounting Firm in good faith, and such good faith determination shall be
conclusive and binding on the Executive and the Bank;
The Bank, at its sole expense, shall maintain in full force and effect
for the continued benefit of the Executive and his eligible dependents, for a
period of twelve (12) months (or longer, if required by applicable law)
following the date of termination, each Employee Welfare Benefit Plan in which
the Executive was entitled to participate immediately prior to the Notice of
Termination, at the benefit levels then in effect; provided, however, in the
event the Executive's continued participation in any such plan is not permitted
thereunder, then the Bank, at its sole expense, shall provide the Executive and
his eligible dependents a benefit substantially similar to and no less favorable
than the benefit provided under such plan immediately prior to such termination
of any period of coverage; provided further, however, at the termination of any
period of coverage provided above, the Executive shall have the option to have
assigned to him, at no cost and with no apportionment of prepaid premiums, any
assignable insurance owned by the Bank and relating specifically to the
Executive;
The Bank shall pay to the Executive all legal fees and expenses
incurred by the Executive as a result of such termination of employment,
including but not limited to all such fees and expenses, if any, incurred in
contesting or disputing any such termination, or in seeking to obtain or enforce
any right or benefit provided by this Agreement;
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The Executive shall not be required to mitigate the amount of any
payment or other benefit provided under this Agreement by seeking other
employment or otherwise, nor shall the amount of any payment or other benefit
provided under this Agreement be reduced by any compensation earned from or
other benefit provided by any other employer of the Executive following the date
of termination, or otherwise; and
All fees and expenses of the Accounting Firm for services specified in
this subsection (d) shall be borne solely by the Bank
All options granted to the Executive shall become fully vested and
subject to immediate exercise by the Executive, notwithstanding any vesting
schedule or other provision of any option agreement, and the Executive shall
have 90 days after the date of termination to exercise all options.
(e) NONEXTENSION UNDER SECTION 2. In the event that a party determines
not to extend this Agreement and gives the notice described in that section,
then within a reasonable time (not to exceed 60 days) thereafter, the Bank may
notify the Executive that it intends to extend the noncompetition provisions of
Section 9 for six months after the expiration date and, in such event, the Bank
will be required to pay Executive the Base Salary and all benefits during such
period just as if the Executive were still employed under this Agreement;
provided that, in such event, the Executive shall during said six month period
be bound by the noncompetition provisions of Section 9.
(f) COMPENSATION DURING INCAPACITY. In the event of the Executive's
failure to satisfactorily perform his duties hereunder on a full-time basis by
reason of his incapacity due to physical or mental illness (as determined by the
Executive's regular attending physician) for any period not otherwise
constituting Disability as defined under subsection (a) of this Section 7, the
Executive's employment hereunder shall not be deemed terminated and he shall
continue to receive the compensation and benefits provided under Section 5 in
accordance with the terms thereof.
(g) ADDITIONAL TIME TO CURE BREACHES. To the extent that a breach is
not cured by the breaching party within the specified time as provided herein,
such time period shall be deemed extended automatically for a reasonable time
(i) if the breach is reasonably subject to being cured within a reasonable time,
(ii) the breaching party is diligently and vigorously in good faith pursuing a
reasonable cure, and (iii) the non-breaching party is not being materially
damaged or subjected to unreasonable risk as a result of this extension. This
automatic extension shall terminate in the event that it becomes clear that the
breach cannot be cured within a reasonable time or if the breaching party ceases
to perform as set forth in (ii) above.
(h) TERMINATION BY DEATH. This Agreement shall automatically terminate
upon the death of Executive. In such event, all compensation and benefits due
under this Agreement shall terminate on Executive's death, except for benefits
(such as life insurance or stock options) specified in separate written
agreements or plans.
(i) EFFECT OF TERMINATION ON VESTED BENEFITS. Notwithstanding anything
contained in this Agreement, Executive's termination of employment shall not
affect the Bank's (or any Bank affiliate's) liability for the payment of vested
benefits pursuant to individual contracts, plans or arrangements, or pursuant to
state or federal law, requiring the payment of such benefits.
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(j) EFFECT OF BANK'S FAILURE TO MAKE PAYMENTS. In the event that the
Bank fails to make any payment hereunder within ten days of the due date
thereof, then unless such payment is less than $1,000.00 in the aggregate with
all other late payments then outstanding, the Executive is authorized to seek
immediate payment of all amounts due hereunder by accelerating the due date
thereof and the Executive shall, if any payment is not made within thirty (30)
days of the due date there and such payment is more than $1,000.00 in the
aggregate with all other late payments then outstanding, the Executive can on
ten days notice terminate his noncompetition obligations under this Agreement
unless the breach or violation is cured within such ten day period.
(k) EFFECT OF FORMATION OF A PARENT COMPANY. In the event that a parent
bank holding company (referred to elsewhere herein as a "Parent Company") is
formed for the Bank, this Agreement shall be deemed to be an obligation of the
Parent Company as well as the Bank and the Parent Company shall, on demand by
the Executive, join in this Agreement in writing.
8. NONDISCLOSURE. During the term of his employment hereunder, or at
any time thereafter, the Executive shall not disclose or use (except in the
course of his employment hereunder) any confidential or proprietary information
or data of the Bank or any of its subsidiaries or affiliates regardless of
whether such information or data is embodied in writing or other physical form.
Of course, the Executive's knowledge and skills obtained during employment shall
remain his alone.
9. NONCOMPETITION.
(a) PARTICIPATION IN A COMPETING BUSINESS. Except as otherwise
expressly provided in this Agreement, during the Term or any Extended Term and
for one year after termination of the Executive's employment (such one year
being the "Post-Term Period") (regardless of whether the Executive's employment
ends at the end of the Term or any Extended Term or at some other point after
the end of the Term or any Extended Term), the Executive will not become
involved with a Competing Business (as defined below) or serve, directly or
indirectly, a Competing Business in any manner, including, without limitation,
as a shareholder, member, partner, director, officer, manager, investor,
organizer, "founder," employee, consultant, or agent; provided, however, that
the Executive may acquire and own an interest not to exceed 2% of the total
equity interest in any publicly held entity whose equity securities are listed
on a national securities exchange (even if such entity is a Competing Business).
The Executive's noncompetition obligations for the Post-Term Period
will not apply if (1) the Executive's employment during the Term or any Extended
Term is terminated without a cause described in Section 7(a), (2) the Executive
terminates his employment during the Term or any Extended Term for a cause
described in subsection 7(b) or subsection 7(j), or (3) the Bank or its
successor declines to employ the Executive after expiration of the Term or any
Extended Term except that the Bank may extend the noncompetition period as
provided in Section 7(e). (The salary and benefits for any such six-month
extended period shall be the then-current Base Salary adjusted for inflation in
accordance with subsection 5(a).)
(b) NO SOLICITATION. During the Term or any Extended Term and the
Post-Term Period (regardless of whether the Executive's employment ends at the
end of the Term or any Extended Term or at some other point after the end of the
Term or any Extended Term) the Executive will not directly or indirectly solicit
or attempt to solicit (1) any employees located in Davidson County in the State
of Tennessee, or in any other county or counties in Tennessee in which the Bank
or an affiliate of the Bank maintains an office during the Executive's
employment (the "Counties") of the Bank or any affiliate of the Bank, to leave
their employment or (2) any customers located in any of the Counties of the Bank
or any affiliate of the Bank to remove their business from the Bank or any
affiliate of the Bank, or to participate in any manner in a Competing Business.
Solicitation prohibited under this Section includes solicitation by
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12 December 2000
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any means, including, without limitation, meetings, letters or other mailings,
electronic communications of any kind, and internet communications. The
Executive's non-solicitation obligations shall in all events be the same as for
any noncompetition period (including the period specified in Section 7(e)).
(c) EMPLOYMENT OUTSIDE THE COUNTIES. Nothing in this Agreement prevents
the Executive from accepting employment from a Competing Business, after
termination of the Executive's employment, outside the Counties, as long as the
Executive will not, either directly or indirectly, (a) act as an employee or
other representative or agent of the Competing Business within the Counties or
(b) have any responsibilities for the Competing Business' operations within the
Counties.
(d) COMPETING BUSINESS. "Competing Business" means any financial
institution or trust company that competes with, or will compete in any of the
Counties with, the Bank or any affiliate of the Bank. The term "Competing
Business" includes, without limitation, any start-up or other financial
institution or trust company in formation.
(e) EXECUTIVE ACKNOWLEDGMENT. The Executive specifically acknowledges
and agrees that the foregoing restrictions on competition with the Bank will not
prevent the Executive from obtaining gainful employment following his
termination of employment with the Bank, and is a reasonable restriction upon
the Executive's ability to compete with the Bank, given the economic benefits
offered the Executive under this Agreement.
(f) EQUITABLE RELIEF. The Executive acknowledges that the breach or
threatened breach of any of the provisions of this Section 9 of this Agreement
will cause immediate irreparable harm to the Bank and cannot be adequately
compensated by the payment of damages. Accordingly, the Executive covenants and
agrees that the Bank, in addition to any other rights or remedies which it may
have, will be entitled to such equitable and injunctive relief as may be
available from any court of competent jurisdiction to restrain the Executive
from breaching or threatening to breach any of the provisions of this Section
without posting bond or other surety. Such right to obtain injunctive relief may
be exercised at the option of the Bank in addition to, concurrently with, prior
to, after, or in lieu of the exercise of any other rights or remedies which the
Bank may have as a result of such breach or threatened breach.
(g) SUMMARY OF TERMS. By way of clarification of the noncompetition and
Termination Payment provisions of this Agreement, the parties agree that:
(i) If the Executive resigns without cause, the Executive shall
not be entitled to the Termination Payment but he shall be
subject to the noncompetition provisions of this Section 9.
(ii) If the Executive is properly terminated by the Bank for cause,
the Executive shall not be entitled to the Termination Payment
but he shall be subject to the noncompetition provisions of
this Section 9.
(iii) If there is a Change in Control and the Executive resigns
within six months after the effective date thereof (or, if
there is no clear cut effective date, then from the date that
the Executive notifies the Bank that he believes that there
has been a Change in Control), the Executive shall be entitled
to the Termination Payment but he shall not be subject to the
noncompetition provisions of this Section 9.
(iv) If the Executive resigns for cause attributable to the Bank or
any Parent Company, including the cause described in
subsection (j) of Section 7, or if the Executive is terminated
by the Bank or any Parent Company in a Non-Cause Termination,
the Executive shall be entitled to the Termination Payment but
he shall not be subject to the
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Page 11 of 15
noncompetition provisions of this Section 9.
(v) If either party gives notice that this Agreement will not be
renewed at the end of the then- current term, then the Bank
may extend the operation of the noncompetition provision as
set forth in subsection (e) of Section 7. Otherwise, the
noncompetition provisions shall expire on the date that the
then current Term (or Extended Term) expires.
10. INDEMNIFICATION. The Bank shall indemnify and hold the Executive
harmless to the maximum extent permitted by law against judgments, fines,
amounts paid in settlement and reasonable expenses (including attorney's fees)
incurred by him in connection with the defense of, or as a result of any action
or proceeding (or appeal therefrom) in which he is made (or threatened to be
made) a party by reason of the fact that he is or was an officer or director of
the Bank, regardless of whether such action or proceeding is one brought by or
in the right of the Bank, or to procure a judgment in its favor. The Bank
further agrees that the Executive is or shall continue to be covered and insured
up to the maximum limits provided by all insurance maintained by the Bank to
indemnify its officers and directors (and the Bank in connection therewith), and
that the Bank will use its reasonable best efforts to maintain such insurance in
not less than its present limits throughout the term of the Executive's
employment hereunder. The Bank hereby warrants and represents that the
undertakings of this Section 10 are not in conflict with its charter or by-laws,
or any other validly existing agreement of the Bank.
11. WITHHOLDING. Any provision of this Agreement to the contrary
notwithstanding, all payments made by the Bank hereunder to the Executive or his
estate or beneficiaries shall be subject to the withholding of such amounts, if
any, relating to tax and other payroll deductions as the Bank may reasonably
determine should be withheld pursuant to any applicable law or regulation. In
lieu of withholding such amounts, the Bank may accept other provisions to the
end that they have sufficient funds to pay all taxes required by law to be
withheld in respect of any or all such payments.
12. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing and shall be sufficiently
given if and when mailed in the continental United States by registered or
certified mail, or personally delivered to the party entitled thereto, at the
address stated below or to such changed address as the addressee may have given
by a similar notice:
To the Bank: Capital Bank and Trust Company
Attn: Chairman of the Board
0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
To the Executive: H. Xxxxxx Xxxxxxx, III
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
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13. SUCCESSORS; BINDING AGREEMENT. The Bank 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 Bank, by agreement
in the form and substance satisfactory to the Executive, to expressly assume and
agree to perform this Agreement in the same manner and to the same extent that
the Bank would be required to perform it if no such succession had taken place.
Failure of the Bank to obtain such agreement prior to the effectiveness of any
such succession shall be a breach of this Agreement and shall constitute a
Non-Cause Termination of the Executive by the Bank for the purposes of
subsection 7(d). For purposes of this Agreement, "Bank" shall mean the Bank as
defined above, and any successor to its business and/or assets as aforesaid
which executes and delivers the agreement provided for in this Section 13, or
which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law.
This Agreement shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisee and legatees. If the Executive should
die while any amount would still be payable to him hereunder if he had continued
to live, all such amounts, except to the extent otherwise provided under this
Agreement, shall be paid in accordance with the terms of this Agreement to his
devisee, legatee or other designee, or if there be no such designee, to the
Executive's estate.
14. MODIFICATION, WAIVER OR DISCHARGE. No provision 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 an authorized
representative of the Bank. No waiver by either party hereto at anytime 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 expressly set forth in this Agreement; provided,
however, that this Agreement shall not supersede or in any way limit the right,
duties or obligations that the Executive or the Bank may have under any other
written agreement between such parties, under any employee pension benefit plan
or employee welfare benefit plan as defined under the Employee Retirement Income
Security Act of 1974, as amended, and maintained by the Bank, or under any
established personnel practice or policy applicable to the Executive.
15. GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Tennessee.
16. VALIDITY. The invalidity or unenforceability of any provision of
this Agreement shall not effect the validity or enforceability of any other
provision of this Agreement, which latter shall remain in full force and effect.
17. DISPUTE RESOLUTION. In the event of any dispute, claim, questions
or disagreement arising from or relating to this Agreement or the breach thereof
("Dispute"), the parties hereto shall use their best efforts to resolve the
Dispute in a manner satisfactory to both parties through consultation and
negotiation with each other in good faith. If the Dispute cannot be resolved
through direct negotiations within a period of sixty (60) days, the parties
agree to attempt to settle the Dispute in an amicable manner by mediation before
resorting to arbitration. Thereafter, any unresolved Dispute shall be resolved
by arbitration. Any mediation or arbitration hereunder shall be conducted in
Nashville, Tennessee, in accordance with the Commercial Mediation Rules or the
Commercial Arbitration Rules, respectively, of the American Arbitration
Association ("Association"), as in effect at the time of the mediation or
arbitration. Unless the parties agree otherwise, such mediation or arbitration
shall also be conducted under the auspices of, and
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12 December 2000
Page 13 of 15
administered by, the Association. If arbitration is used, and if the amount in
controversy (including both claims and counterclaims) exceeds $50,000, then
either party may demand (within 90 days after the case is initially opened by
the Association) that the case be assigned to a panel of three neutral
arbitrators who may act in all cases by absolute majority of three). The
arbitrator(s) may award actual but not punitive damages and may award attorneys
fees, discretionary costs (as that term is understood under the Federal Rules of
Civil Procedure), and other expenses as the arbitrator(s) shall deem just and
appropriate. Limited deposition and document production discovery shall be
permitted. The arbitrator(s) shall issue the award or decision not later than
300 days after the Association first receives a demand for arbitration. Judgment
under any award may be entered by any Court of competent jurisdiction under the
Tennessee Arbitration Act, as the same shall be amended from time to time.
18. MISCELLANEOUS.
(a) NO RIGHT OF SET-OFF, RECOUPMENT, ETC. There shall be no right of
set-off, recoupment or counterclaim, in respect of any claim, debt or obligation
against any payments to the Executive, his beneficiaries or estates provided for
in this Agreement.
(b) NO ADEQUATE REMEDY AT LAW. The Bank and the Executive recognize
that each party will have no adequate remedy at law for breach by the other of
any of the agreements contained herein and, in the event of any such breach, the
Bank and the Executive hereby agree and consent that the other shall be entitled
to decree of specific performance, mandamus, or other appropriate remedy to
enforce performance of such agreements.
(c) NON-ASSIGNABILITY. No right, benefit, or interest hereunder shall
be subject to anticipation, alienation, sale, assignment, encumbrance, charge,
pledge, hypothecation, or set-off in respect of any claim, debt or obligation,
or to execution, attachment, levy or similar process, or assignment by operation
of law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void and of no effect. Any of the foregoing to the contrary
notwithstanding, this provision shall not preclude the Executive from
designating one or more beneficiaries to receive any amount that may be payable
after his death, and shall not preclude the legal representative of the
Executive's estate from assigning any right hereunder to the person or persons
entitled thereto under his will or, in the case of intestacy applicable to his
estate.
(d) CAPTIONS AND SECTION 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.
(e) ACTION BY THE BOARD. As used in this Agreement, the concept of
"action" by the Board of Directors means any lawful resolution or action of the
Board of the Bank as to which at least an absolute majority of the Directors
(other than the Executive) join.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together will constitute one and the same instrument.
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Page 14 of 15
20. GOOD FAITH AND FAIR DEALING. The parties shall deal with each other
fairly and in good faith.
IN WITNESS WHEREOF, the Executive and the Bank (by action of its duly
authorized officers) have executed this Agreement on the date first above
written.
ATTEST: CAPITAL BANK AND TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx, Director
--------------------------------------------
(Authorized Representative)
EXECUTIVE:
/s/ H. Xxxxxx Xxxxxxx, III
-----------------------------------------------
H. XXXXXX XXXXXXX, III
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