EXHIBIT 5
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement") dated
____________, 2000, is by and between HILLSBOROUGH SAVINGS BANK, INC., SSB,, a
state savings bank with its principal office in Hillsborough, North Carolina;
its corporate successor, NBC BANK, FSB, a federal savings bank (collectively
referred to as "NBC" or "the COMPANY") and __________________ (the "EMPLOYEE"),
whose address is .
RECITALS
A. National Commerce Bancorporation, a bank holding company with
its principle office at One Commerce Square, Memphis,
Tennessee, ("NCBC") has entered into an Agreement and Plan of
Merger dated as of December 27, 1999 with Piedmont Bancorp,
Inc. ("PBI") whereby PBI will be acquired, through merger, by
NCBC (the "Acquisition");
B Hillsborough Savings Bank, Inc., SSB, is a wholly-owned
subsidiary of PBI;
C. It is contemplated that in the future Hillsborough Savings
Bank, Inc., SSB will be merged with and into NBC;
D. Employee is currently employed by Hillsborough Savings Bank,
Inc., SSB;
E. Employee and NBC desire to commit to the following terms and
conditions for the Employee's future employment with NBC; and
F. NBC desires to employ Employee in the current position of
_____________________; and Employee hereby accepts such
employment in accordance with the terms and conditions as set
forth herein.
For the reasons set forth above, and in consideration of the
mutual promises and agreements set forth in this Agreement, the Parties agree as
follows:
1. Terms and Conditions of Employment. NBC hereby engages
Employee for a period commencing on _______________, and ending _____________
(the "Term of Employment"). This Agreement (including all of its terms and
conditions) is terminated by its terms on __________________, and shall not
continue after that date. However, Employee's employment with NBC may continue
after that date at the will of both the Employee and NBC and not for any
particular period of time.
2. Duties. During the Term of Employment, Employee shall
maintain regular office hours, working a minimum of forty (40) hours per week.
Employee shall perform such work as may be required by NBC from time to time
under the terms and conditions and according to the directions, instructions,
and control of NBC. The duties of Employee may be changed from time to time with
the agreement of the parties. The duties of the Employee shall be consistent
with Employee's past work experience.
Employee shall strictly adhere to all of the rules,
regulations and policies of NBC that are presently in force as NBC corporate
policy or that may be established with respect to Employee's conduct or
otherwise. Employee shall also follow the directions of NBC regarding the
methods employees should use in performing their duties.
Employee is responsible in continuing to maintain NBC'S
standards of quality with respect to all services and/or products offered.
3. Compensation.
a. Salary. NBC shall pay Employee an annual salary ("Regular
Salary") in accordance with this Agreement in the amount of $____________. The
payments shall be made semi-monthly on the 15th and the last day of each month.
The appropriate federal and state taxes will be deducted from the Regular Salary
amount. This Regular Salary is exclusive of any incentive payments Employee may
be entitled to under other incentive plans.
b. Retention Bonus. Employee shall be entitled to a retention
bonus equal to two (2) weeks pay if Employee remains with the Company for
[insert retention bonus language]. Neither the Initial Retention Bonus nor the
Additional Retention Bonus will affect Employee's eligibility to participate in
any additional available incentive programs during the term of this Agreement.
4. Place of Employment. Employee's current work location is
____________________. However, NBC may require that Employee work at such
reasonable places as Employee and NBC's Regional President may agree.
5. Employee Benefits. The Employee shall be entitled, upon
eligibility, to participate in such Employee benefit programs as are generally
available to other full-time employees of NBC. Employee should refer to the
applicable employee benefit plan(s) for information regarding coverage and
handling of claims.
6. Termination of Agreement. NBC may terminate this Agreement
and Employee's employment under this Agreement for any of the following causes:
a. Habitual absenteeism or lateness;
b. Failure by Employee to adhere to NBC'S personnel policies
in effect on the effective date of this Agreement or as modified during the term
of this Agreement;
c. Conduct disloyal to NBC;
d. Employee's admission of, indictment for, or conviction in a
court of law of any crime or offense that (i) constitutes a violation of any
applicable federal, state or local laws or regulations involving a felony in the
jurisdiction involved; (ii) involves theft or embezzlement; or (iii) involves
moral turpitude;
e. Employee's inability or failure to perform satisfactorily
the duties of its position, or any other duties and/or position(s) which may be
assigned by NBC in accordance with this Agreement, such performance to be judged
in the sole discretion of NBC, if such inability or failure has not been
remedied within a thirty (30) day period after receipt of written notice from
NBC of such inability or failure, which written notice must state with
specificity the obligations Employee has failed to perform; or
f. Any incident or pattern of conduct that might tend to hold
NBC up to ridicule in the community;
Notwithstanding any other term(s) of this Agreement, NBC may,
at any time terminate Employee's employment for any cause listed above. In the
event NBC terminates Employee's employment for cause, as defined in this
Section, NBC shall give Employee written notice of such termination and, upon
the effective date of termination set forth in such notice, Employee's
employment shall be terminated. Except as provided in subsection "e." above,
NBC's written notice of termination and the effective date of termination may be
simultaneous. If Employee is terminated, NBC shall pay Employee's base salary
through and including the effective date of termination but shall have no
obligation to pay Employee's base salary for any period after such effective
date of termination and shall have no obligation to pay Employee the retention
bonus described in Section 3(b) of this Agreement.
7. Confidentiality. Employee agrees to keep in strict secrecy
and confidence any and all information of a confidential nature as described in
the handbook that Employee may assimilate or to which he may have access during
this employment, whether or not such information constitutes a trade secret.
Employee agrees that both during and after the Term of Employment with NBC, he
will not, without prior written consent of NBC, disclose any such confidential
information to any third person.
In the event of a breach of this confidentiality clause,
Employee will be responsible for any and all associated costs and legal expenses
incurred by NBC in connection with enforcing this provision.
8. Non-Competition. Employee hereby agrees that, during the
Term of Employment and for a period of the lesser of six (6) months from the
date of termination of Employee's employment with NBC or the termination date of
this Agreement, Employee shall not engage in the business of banking, consumer
finance or other financial services and will not compete in any way with NBC. In
the event of a breach of this non-competition clause, Employee will be
responsible for any and all associated costs and legal expenses incurred by NBC
in connection with enforcing this provision.
NBC and Employee agree that NBC may seek to enforce this
non-competition clause in a judicial court with proper jurisdiction. NBC and
Employee agree that if a judicial determination is made that any of the
provisions of this non-competition clause constitutes an unreasonable or
otherwise unenforceable restriction against Employee, the provisions of this
non-competition clause shall be rendered void only to the extent of those
provisions found to be unreasonable or otherwise unenforceable. The parties
hereby agree that any judicial or arbitral authority construing this Agreement
shall be empowered to sever any prohibited business activity or any time period
from the coverage of this non-competition clause and to apply the
non-competition provisions to the remaining business activities and the
remaining time period.
9. Miscellaneous.
a. Governing Law. It is agreed between NBC and Employee that
the law of the State of _____________ will govern the interpretation, validity,
and effect of this Agreement without regard to the place of execution or place
of performance thereof.
b. Severability. If any clause or provision in this Agreement
shall be adjudged to be invalid in any manner it shall not affect the validity,
legality and enforceability of any other clause or provision which shall remain
in full force and effect.
c. Waivers. No waiver by either party of any breach of
nonperformance of any provision or obligation of this Agreement shall be deemed
to be a waiver of any preceding or succeeding breach of the same or any other
provision of this Agreement.
d. Assignment. Neither party may assign its rights or
obligations under this Agreement without the prior written consent of the other
party, provided, however, that at the sole option of NBC or NCBC, this Agreement
may be assigned without the prior written consent of Employee to any banking
affiliate of NBC or to any banking affiliate acquiring all of the assets of NBC
or to any banking affiliate into which NBC may be merged or consolidated. An
"affiliate" of NBC shall be defined as any entity that indirectly, through one
or more intermediary's controls, is controlled by, or is under common control
with NBC. If the NCBC acquires or forms subsidiary companies, becomes connected
with other affiliate companies by acquisition, merger, consolidation, or
otherwise, Employee agrees to be employed by any of the same and in such event
all of the terms and conditions set forth herein shall bind the parties.
e. Arbitration. Except as otherwise provided, any controversy
or claim arising out of or relating to this Agreement shall be settled in
accordance with the rules of the American Arbitration Association. The parties
agree to be bound by the majority decision of the arbitrators. The Arbitration
proceeding shall take place in ___________________________, unless another
location is mutually agreed upon in writing by the parties. Three (3)
arbitrators shall be selected for the arbitration panel. Each party shall select
one (1) arbitrator. The arbitrators named by each party shall select the third
arbitrator. The cost and expenses of the arbitration proceeding itself shall be
shared equally by the parties; however, each party shall be responsible for its
own legal expenses and costs in connection with arbitrating such a dispute. The
award of the arbitrator shall be final and a judgment on the award rendered by
the arbitrator may be entered in any court having jurisdiction there. This
provision shall survive the termination of this Agreement.
In the event of noncompliance or violation, as the case may
be, by Employee of paragraphs 7 (Confidentiality) and/or 8 (Non-Competition) of
this Agreement, NBC may alternatively apply to the
_________________________________ all legal and/or equitable remedies that may
be available, since NBC would have no adequate remedy at law for such violation
or noncompliance.
f. No Oral Modification. No modification of this Agreement by
either party will be binding on NBC or Employee unless it is in writing, signed
by both parties, and approved by the current Chairman of National Commerce
Bancorporation.
g. Binding Effect. This Agreement shall inure to the benefit
of and bind the parties hereto and their respective heirs, successors, and
assigns, subject to subsection "d." herein above.
THIS AGREEMENT CONTAINS THE ENTIRE AGREEMENT OF THE PARTIES
HERETO AND THEREFORE SUPERSEDES ANY AND ALL OTHER ORAL OR WRITTEN AGREEMENTS OR
UNDERSTANDINGS.
Attest: HILLSBOROUGH SAVINGS BANK, INC., SSB
By:
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Attest: NBC BANK, FSB
By:
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Witness: EMPLOYEE
