EXHIBIT 10.2
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of December 28, 2001, by
and between MOUNTAIN NATIONAL BANK (the "Bank"), Sevierville, Tennessee; and
Xxxxxx X. Xxxxxxxx (the "Executive").
WHEREAS, the Bank wishes to assure itself of the services of
Executive for the period provided in this Agreement; and
WHEREAS, the Executive is willing to serve in the employment
of the Bank on a full-time basis for said period.
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, and upon the other terms and conditions hereinafter provided,
the parties hereby agree as follows:
1. POSITION AND RESPONSIBILITIES.
During the period of his employment hereunder, Executive agrees to
serve as President and Chief Executive Officer of the Bank.
2. TERMS AND DUTIES.
(a) The term of this Agreement shall be deemed to have commenced as of
the date first above written and shall continue for a period of thirty-six (36)
full calendar months thereafter. Upon the expiration of this Agreement for a
period of twelve (12) months, the Executive agrees that he will not compete with
the Bank in any city or town in which the Bank operates a branch or main office.
For purposes of this paragraph, the term "compete" shall have the same meaning
as that more fully described in Paragraph 10, Non-Competition.
(b) During the period of his employment hereunder, except for periods
of absence occasioned by illness, vacation periods, and leaves of absence,
Executive shall devote substantially all his business time, attention, skill,
and efforts to the faithful performance of his duties hereunder including
activities and services related to the organization, operation and management of
the Bank; provided, however, that, from time to time, Executive may serve, or
continue to serve, on the boards of directors of, and hold any other offices or
positions in, companies or organizations, which will not materially affect the
performance of Executive's duties pursuant to this Agreement.
3. COMPENSATION AND REIMBURSEMENT.
(a) The compensation specified under this Agreement shall constitute
the salary and benefits paid for the duties described in Sections 1 and 2. The
Bank shall pay Executive as compensation a salary of One Hundred Thirty-Five
Thousand Dollars ($135,000) per year ("Base Salary"). Such Base Salary shall be
payable in accordance with the customary payroll practices of the Bank. During
the period of this Agreement, Executive's Base Salary shall be reviewed at least
annually; the first such review will be made no later than one year from the
date of this Agreement. Such review shall be conducted by Chairman of the Board
of the Bank and the Chairman of the Board may increase Executive's Base Salary.
In addition to the Base Salary provided in this Section 3(a), the Bank shall
provide to Executive at no additional cost to Executive all such other benefits
as are provided to regular full-time employees of the Bank.
(b) Executive will be entitled to participate in or receive benefits
under any employee benefit plans including, but not limited to, stock options,
retirement plans, supplemental retirement plans, pension plans, profit-sharing
plans, health-and-accident plans, medical coverage or any other employee benefit
plan or arrangement made available by the Bank in the future to its senior
executives and key management employees, subject to, and on a basis consistent
with, the terms, conditions and overall administration of such plans and
arrangements. Executive will be entitled to incentive compensation and bonuses
as provided in any plan, or pursuant to any arrangement of the Bank, in which
Executive is eligible to participate. Nothing paid to the Executive under any
such plan or arrangement will be deemed to be in lieu of other compensation to
which the Executive is entitled under this Agreement, except as provided under
Section 5(e).
(c) Executive will be reimbursed for reasonable travel and
entertainment expenses.
4. PAYMENTS TO EXECUTIVE UPON AN EVENT OF TERMINATION.
(a) Upon the occurrence of an Event of Termination (as herein defined)
during the Executive's term of employment under this Agreement, the provisions
of this Section shall apply. As used in this Agreement, an "Event of
Termination" shall mean and include any one or more of the following: (i) the
termination by the Bank of Executive's full-time employment hereunder for any
reason other than a Change in Control as defined in Section 5(a) hereof;
disability, as defined in Section 6(a) hereof; death; retirement, as defined in
Section 7 hereof; or for Cause, as defined in Section 8 hereof; (ii) Executive's
resignation from the Bank's employment, upon (A), unless consented to by the
Executive, a material change in Executive's function, duties, or
responsibilities, which change would cause Executive's position to become one of
lesser responsibility, importance, or scope from the position and attributes
thereof described in Sections 1 and 2, above, (any such material change shall be
deemed a continuing breach of this Agreement); (B) a relocation of Executive's
principal place of employment by more than fifty (50) miles from its location at
the effective date of this Agreement, or a material reduction in the benefits
and perquisites to Executive from those being provided as of the effective date
of this Agreement; (C) the liquidation or dissolution of the Bank; or (D) any
breach of this Agreement by the Bank. Upon the occurrence of any event described
in clauses (A), (B), (C), or (D), above, Executive shall have the right to elect
to terminate his employment under this Agreement by resignation upon not less
than sixty (60) days prior written notice to the Bank given within a reasonable
period of time not to exceed, except in case of a continuing breach, four
calendar months after the event giving rise to said right to elect.
(b) Upon the occurrence of an Event of Termination, the Bank shall pay
Executive, or, in the event of his subsequent death, his beneficiary or
beneficiaries, or his estate, as the case may be, as severance pay or liquidated
damages, or both, a lump sum payment equal to twelve (12) months Base Salary.
(c) Upon the occurrence of an Event of Termination, the Bank will cause
to be continued life, medical, dental and disability coverage substantially
identical to the coverage maintained by the Bank for Executive prior to his
termination for a period of twelve (12) months at the Bank's expense. A COBRA
notice will issue upon the date of termination. Any COBRA-mandated coverage
extensions beyond the first twelve (12) months will be at the option of the
Executive and paid for by him as provided by law unless he has secured other
coverage from another source extinguishing his coverage rights.
5. CHANGE IN CONTROL.
(a) No benefit shall be paid under this Section 5 unless there shall
have occurred a Change in Control of the Bank. For purposes of this Agreement, a
"Change in Control" of the Bank shall be deemed to occur if and when:
(i) there occurs an acquisition in one or more transactions of
at least 15 percent but less than 25 percent of the Common Stock by any
Person, or by two or more Persons acting as a group (excluding officers
and directors of the Bank), and the adoption by the Board of Directors
of a resolution declaring that a change in control of the Bank has
occurred; or
(ii) there occurs a merger, consolidation, reorganization,
recapitalization or similar transaction involving the securities of the
Bank upon the consummation of which more than 50 percent in voting
power of the voting securities of the surviving corporation(s) is held
by Persons other than former shareholders of the Bank; or
(iii) 25 percent or more of the directors elected by
shareholders of the Bank to the Board of Directors are persons who were
not listed as nominees in the Bank's then most recent proxy statement
(the "New Directors").
(b) If any of the events described in Section 5(a) hereof constituting
a Change in Control have occurred or the Board of the Bank has determined that a
Change in Control has occurred, Executive shall be entitled to the benefits
provided in paragraphs (c), (d) and (e) of this Section 5 upon his subsequent
involuntary termination of employment at any time during the term of this
Agreement (or voluntary termination following a Change of Control following any
demotion, loss of title, office or significant authority, reduction in his
annual compensation or benefits, or relocation of his principal place of
employment by more than 50 miles from its location immediately prior to the
Change in Control), unless such termination is because of his death, retirement
as provided in Section 7, termination for Cause, or termination for Disability.
(c) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank shall pay Executive, or in the
event of his subsequent death, his beneficiary or beneficiaries, or his estate,
as the case may be, as severance pay or liquidated damages, or both, a sum equal
to one (1) time the Executive's "base amount," within the meaning of
ss.280G(b)(3) of the Internal Revenue Code of 1986 ("Code"), as amended. Such
payment shall be made in a lump sum paid within ten (10) days of the Executive's
Date of Termination.
(d) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Bank will cause to be continued life,
medical, dental and disability coverage substantially identical to the coverage
maintained by the Bank for Executive prior to his severance. In addition,
Executive shall be entitled to receive the value of employer contributions that
would have been made on the Executive's behalf over the remaining term of the
agreement to any tax-qualified retirement plan sponsored by the Bank as of the
Date of Termination. Such coverage and payments shall cease upon the expiration
of twelve (12) months.
(e) Upon the occurrence of a Change in Control the Executive shall be
entitled to receive benefits due him under, or contributed by the Bank on his
behalf, pursuant to any retirement, incentive, profit sharing, bonus,
performance, disability or other employee benefit plan maintained by the Bank on
the Executive's behalf to the extent that such benefits are not otherwise paid
to the Executive upon a Change in Control.
(f) Notwithstanding the preceding paragraphs of this Section 5, in the
event that the aggregate payments or benefits to be made or afforded to the
Executive under this Section would be deemed to include an "excess parachute
payment" under ss.280G of the Code, such payments or benefits shall be payable
or provided to Executive in equal monthly installments over the minimum period
necessary to reduce the present value of such payments or benefits to an amount
which is one dollar ($1.00) less than three (3) times the Executive's "base
amount" under ss.280G(b)(3) of the Code.
(g) Upon the occurrence of a Change in Control followed by the
Executive's termination of employment, the Executive agrees that he will not
compete with the Bank or the surviving financial institution for a period of
twelve (12) months in any city or town in which the Bank operates a branch or
main office. For purposes of this paragraph, the term "compete" shall have the
same meaning as more fully defined in Paragraph 10, Non-Competition.
6. TERMINATION FOR DISABILITY.
1. If the Executive shall become disabled as defined in the Bank's then
current disability plan (or, if no such plan is then in effect, if the Executive
is permanently and totally disabled within the meaning of Section 22(e)(3) of
the Code as determined by a physician designated by the Board), the Bank may
terminate Executive's employment for "Disability."
2. Upon the Executive's termination of employment for Disability, the
Bank will pay Executive, as disability pay, a bi-weekly payment equal to
two-thirds (2/3) of Executive's bi-weekly rate of Base Salary on the effective
date of such termination. These disability payments shall commence on the
effective date of Executive's termination and will end on the earlier of (i) the
date Executive returns to the full-time employment of the Bank in the same
capacity as he was employed prior to his termination for Disability and pursuant
to an employment agreement between Executive and the Bank; (ii) Executive's
full-time employment by another employer; (iii) Executive attaining the normal
expected retirement age or age 65 if the Executive so elects; or (iv)
Executive's death. The disability pay shall be reduced by the amount, if any,
paid to the Executive under any plan of the Bank providing disability benefits
to the Executive.
3. The Bank will cause to be continued life, medical, dental and
disability coverage substantially identical to the coverage maintained by the
Bank for Executive prior to his termination for Disability. This coverage and
payments shall cease upon the earlier of (i) the date Executive returns to the
full-time employment of the Bank, in the same capacity as he was employed prior
to his termination for Disability and pursuant to an employment agreement
between Executive and the Bank; (ii) Executive's full-time employment by another
employer; (iii) Executive's attaining normal retirement age or age 65 if the
Executive so elects; or (iv) the Executive's death.
4. Notwithstanding the foregoing, there will be no reduction in the
compensation otherwise payable to Executive during any period during which
Executive is incapable of performing his duties hereunder by reason of temporary
disability.
5. Executive agrees that he will not compete with the Bank in any city
or town in which the Bank operates a branch or main office for a period of
twelve (12) months following his retirement from his employment by the Bank. For
purposes of this paragraph, the term "compete" shall have the same meaning as
more fully defined in Paragraph 10, Non-Competition.
7. TERMINATION UPON RETIREMENT; DEATH OF EXECUTIVE.
Termination by the Bank of Executive based on "Retirement" shall mean
retirement at age 65 or in accordance with any retirement arrangement
established with Executive's consent with respect to him. Upon termination of
Executive upon Retirement, Executive shall be entitled to all benefits under any
retirement plan of the Bank and other plans to which Executive is a party. Upon
the death of the Executive during the term of this Agreement, the Bank shall pay
to Executive's estate the compensation due to the Executive through the last day
of the calendar month in which his death occurred.
8. TERMINATION FOR CAUSE.
For purposes of this Agreement, "Termination for Cause" shall include
termination because of the Executive's personal dishonesty, incompetence,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform stated duties, willful violation of any law,
rule, or regulation which negatively impacts the Bank (other than traffic
violations or similar offenses) or final cease-and-desist order, or material
breach of any provision of this Agreement. For purposes of this Section, the
term "willful" is defined to include any act or omission which demonstrates an
intentional or reckless disregard for the duties and responsibilities owed to
the business of the employer by Executive. Notwithstanding the foregoing,
Executive shall not be deemed to have been terminated for Cause unless and until
there shall have been delivered to him a copy of a resolution duly adopted by
the affirmative vote of not less than three-fourths of the members of the Board
at a meeting of the Board called and held for that purpose, finding that in the
good faith opinion of the Board, Executive was guilty of conduct justifying
termination for Cause and specifying the reasons thereof. The Executive shall
not have the right to receive compensation or other benefits for any period
after termination for Cause. Any stock options granted to Executive under any
stock option plan or any unvested awards granted under any other stock benefit
plan of the Bank, or any subsidiary or affiliate thereof, shall become null and
void effective upon Executive's receipt of Notice of Termination for Cause
pursuant to Section 9 hereof, and shall not be exercisable by Executive at any
time subsequent to such Termination for Cause. If he is terminated for Cause,
Executive shall not compete with the Bank in any city or town in which the Bank
operates a branch or main office for twelve (12) months from the Date of the
Termination. For purposes of this paragraph, the term "compete" shall have the
same meaning as more fully defined in Paragraph 10, Non-Competition.
9. NOTICE.
(a) Any purported termination by the Bank or by Executive shall be
communicated by Notice of Termination to the other party hereto. For purposes of
this Agreement, a "Notice of Termination" shall mean a written notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of Executive's employment under the provision so
indicated.
2. "Date of Termination" shall mean (A) if Executive's employment is
terminated for Disability, thirty (30) days after a Notice of Termination is
given (provided that he shall not have returned to the performance of his duties
on a full-time basis during such thirty (30) day period); and (B) if his
employment is terminated for any other reason, the date specified in the Notice
of Termination (which, in the case of a Termination for Cause, shall not be less
than thirty (30) days from the date such Notice of Termination is given).
3. If, within thirty (30) days after any Notice of Termination is
given, the party receiving such Notice of Termination notifies the other party
that a dispute exists concerning the termination, except upon the occurrence of
a Change in Control and voluntary termination by Executive in which case the
Date of Termination shall be the date specified in the Notice, the Date of
Termination shall be the date on which the dispute is finally determined, either
by mutual written agreement of the parties by a binding arbitration award, or by
a final judgment, order or decree of a court of competent jurisdiction (the time
for appeal there from having expired and no appeal having been perfected) and
provided further that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence.
Notwithstanding the pendency of any such dispute, the Bank will continue to pay
Executive his full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, Base Salary) and continue him
as a participant in all compensation, benefit and insurance plans in which he
was participating when the notice of dispute was given, until the dispute is
finally resolved in accordance with this Agreement. Amounts paid under this
Section are in addition to all other amounts due under this Agreement and shall
not be offset against or reduce any other amounts due under this Agreement.
10. NON-COMPETITION.
1. Upon any termination of Executive's employment hereunder pursuant to
an Event of Termination as provided in Section 4 hereof, Executive agrees not to
compete with the Bank for a period of twenty-four months (24) following such
termination in any city or town in which the Bank operates a branch or main
office, determined as of the effective date of such termination. Executive
agrees that during such period and within Xxxxxx County, Tennessee, Executive
shall not work for or advise, consult or otherwise serve with, directly or
indirectly, any entity whose business materially competes with the depository,
lending or other business activities of the Bank. The parties hereto,
recognizing that irreparable injury will result to the Bank, its business and
property in the event of Executive's breach of this Subsection 10(a), agree that
in the event of any such breach by Executive, the Bank will be entitled, in
addition to any other remedies and damages available, to an injunction to
restrain the violation hereof by Executive, Executive's partners, agents,
servants, employers, employees and all persons acting for or with Executive.
Executive represents and admits that in the event of the termination of his
employment pursuant to Section 8 hereof, Executive's experience and capabilities
are such that Executive can obtain employment in a business engaged in other
lines and/or of a different nature than the Bank, and that the enforcement of a
remedy by way of injunction will not prevent Executive from earning a
livelihood. Nothing herein will be construed as prohibiting the Bank from
pursuing any other remedies available to the Bank for such breach or threatened
breach, including the recovery of damages from Executive.
11. SOURCE OF PAYMENTS.
All payments provided in this Agreement shall be timely paid in cash or
check from the general funds of the Bank.
12. EFFECT ON PRIOR AGREEMENTS AND EXISTING BENEFITS PLANS.
This Agreement contains the entire understanding between the parties
hereto and supersedes any prior employment agreement between the Bank or any
predecessor of the Bank and Executive, except that this Agreement shall not
affect or operate to reduce any benefit or compensation inuring to the Executive
of a kind elsewhere provided. No provision of this Agreement shall be
interpreted to mean that Executive is subject to receiving fewer benefits than
those available to him without reference to this Agreement.
13. NO ATTACHMENT; SUCCESSORS AND ASSIGNS.
1. Except as required by law, no right to receive payments under this
Agreement shall be subject to anticipation, commutation, alienation, sale,
assignment, encumbrance, charge, pledge, or hypothecation, or to execution,
attachment, levy, or similar process or assignment by operation of law, and any
attempt, voluntary or involuntary, to affect any such action shall be null,
void, and of no effect.
2. This Agreement shall be binding upon, and inure to the benefit of,
Executive and the Bank and their respective successors and assigns.
14. MODIFICATION AND WAIVER.
1. This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
2. No term or condition of this Agreement shall be deemed to have been
waived, nor shall there by any estoppel against the enforcement of any provision
of this Agreement, except by written instrument of the party charged with such
waiver or estoppel. No such written waiver shall be deemed a continuing waiver
unless specifically stated therein, and each such waiver shall operate only as
to the specific term or condition waived and shall not constitute a waiver of
such term or condition for the future as to any act other than that specifically
waived.
15. SEVERABILITY.
If, for any reason, any provision of this Agreement, or any part of any
provision, is held invalid, such invalidity shall not affect any other provision
of this Agreement or any part of such provision not held so invalid, and each
such other provision and part thereof shall to the full extent consistent with
law continue in full force and effect.
16. HEADINGS FOR REFERENCE ONLY.
The headings of sections and paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
17. GOVERNING LAW.
This Agreement shall be governed by the substantive laws and procedural
provisions of the State of Tennessee, unless otherwise specified herein;
provided, however, that in the event of a conflict between the terms of this
Agreement and any applicable federal or state law or regulation, the provisions
of such law or regulation shall prevail.
18. PAYMENT OF LEGAL FEES.
All reasonable legal fees paid or incurred by the Bank or the Executive
pursuant to any dispute or question of interpretation relating to this Agreement
shall be paid or reimbursed by the prevailing party in such judgment,
arbitration or settlement.
19. INDEMNIFICATION.
The Bank shall provide Executive with coverage under a standard
directors' and officers' liability insurance policy at its expense, or in lieu
thereof, shall indemnify Executive to the fullest extent permitted under
applicable Tennessee and federal law and the Articles of the Association against
all expenses and liabilities reasonably incurred by him in connection with or
arising out of any action, suit or proceeding in which he may be involved by
reason of his having been a director or officer of the Bank (whether or not he
continues to be a director or officer at the time of incurring such expenses or
liabilities), such expenses and liabilities to include, but not be limited to,
judgment, court costs and attorneys' fees and the cost of reasonable
settlements.
20. SUCCESSOR TO THE BANK.
The Bank shall require any successor or assignee, whether direct or
indirect, by purchase, merger, consolidation or otherwise, to all or
substantially all the business or assets of the Bank, expressly and
unconditionally to assume and agree to perform the Bank's obligations under this
Agreement, in the same manner and to the same extent that the Bank would be
required to perform if no such succession or assignment had taken place.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and their seal to be affixed hereunto by a duly authorized officer or
director, and Executive has signed this Agreement, all on the 13th day of
December, 2001.
ATTEST: MOUNTAIN NATIONAL BANK
/S/ XXXXXXX X. XXXXXX BY: /S/ XXXXXXX X. XXXXXXX
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[SEAL] Chairman
WITNESS:
/S/ XXXXXXX X. XXXXXX BY: /S/ XXXXXX X. XXXXXXXX
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Executive
