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EXHIBIT 10.17
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement")
is dated this 23rd day of February, 1999, and is by and between THE BANK OF
NASHVILLE (hereinafter referred to as the "Employer"), a corporation formed
under the laws of the State of Tennessee, and XXXX X. XXXXXXXX (hereinafter
referred to as the "Employee").
Employer and Employee hereby agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee, and Employee
hereby accepts employment, upon the terms and conditions hereinafter set forth.
2. TERM. Subject to the provisions hereof, and the faithful
performance by Employee of this employment, as herein defined, the term of
Employee's employment hereunder shall commence on January 3, 1999, and shall
continue thereafter for a period of one year.
3. COMPENSATION.
(a) Base Salary. As compensation for the services to be
rendered by Employee during the period of her employment hereunder, and upon the
condition that Employee shall fully and faithfully keep and perform all of the
terms and conditions hereof, Employer shall pay Employee a salary of
$102,000.00, less income tax and social security withholdings and other
deductions for employee benefits applicable to other employees of Employer
("Salary"). Such Salary shall be payable in one initial
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installment (pro rata) and 23 equal installments paid on the 15th and last day
of each month. The Salary shall be subject to periodic review and revision by
the Employer but shall not be decreased during the term of employment hereunder.
(b) Participation in Benefit Plans. Employee shall
receive all other benefits generally offered to other employees of the Employer
("Benefits").
(c) Continuation. This Agreement shall not be deemed
abrogated or terminated if the Board of Directors or shareholders of Employer
shall determine to increase the compensation of Employee for any period of time.
4. DUTIES. Employee is to be engaged as Senior Vice President and
head of Bank Administration to render services in such capacity which are
consonant with the position of Senior Vice President - Bank Administration. In
addition, Employee shall perform such other duties as are reasonably required of
her by Employer in her capacity as an executive employee. The precise services
of Employee may be extended or curtailed, from time to time, at the direction of
Employer as long as Employee continues to serve as the Senior Vice President in
Bank Administration with such duties as are consistent with that position. If
Employee is elected or appointed to serve as any other officer and/or director
of Employer during the term of this Agreement, Employee shall serve in such
capacity or capacities without further compensation.
5. UNAUTHORIZED DISCLOSURE. During the period of her employment
hereunder, Employee shall not, without the prior written consent of the
Employer, disclose to any person , other than a person to whom disclosure is
necessary or appropriate in connection with the performance by Employee of her
duties as an officer of the employer, any confidential information obtained by
her while in the employ of the Company with
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respect to any of the Employer's products, improvements, designs or styles,
processes, customers, methods of marketing or distribution, systems, procedures,
plans, proposals, or policies the disclosure of which she knows, or should have
reason to know, could be damaging to the Employer; provided, however, that
confidential information shall not include any information known generally to
the public (other than as a result of unauthorized disclosure by the Employee)
or any information of a type not otherwise considered confidential by persons
engaged in the same business or a business similar to that conducted by the
Employer. Following the termination of employment hereunder, the Employee shall
not disclose any confidential information of the type described above except as
may be required in the opinion of the Employee's counsel in connection with any
judicial or administrative proceeding or inquiry.
6. EXPENSES. Employee is authorized to incur reasonable expenses
for promoting the business of Employer. Employer shall reimburse Employee for
all such expenses upon the presentation by Employee, from time to time, of an
account of such expenditures, setting forth the purposes for which incurred, and
the amounts thereof, together with such receipts showing payments as Employee
has reasonably been able to obtain.
7. VACATIONS. Employee shall be entitled each year to a
reasonable vacation or vacations, consistent with Employer's vacation policy,
during which time her compensation shall be paid in full. Each such vacation
shall be taken during a period mutually satisfactory to both Employer and
Employee hereunder.
8. EXTENT OF SERVICES. Employee agrees to perform her services
efficiently, to the best of her ability, and to Employer's reasonable
satisfaction. Employee agrees that
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throughout the Term of this Agreement she will not be engaged or interested in
any other business activity which competes with Employer, whether or not such
business activity is pursued for gain, profit or other pecuniary advantage.
Employee agrees that all of her activities as Employee shall be in conformity
with all present and future policies, rules, regulations and reasonable
directions of Employer.
9. INTELLECTUAL PROPERTY. All right, title and interest of every
kind and nature whatsoever in any to any intellectual property, including any
inventions, patents, trademarks, copyrights, ideas, creations, and properties
furnished to Employer during the Term, and/or used in connection with any of
Employer's activities, or written or created by Employee, or with which Employee
is connected in the performance of her services hereunder, shall as between the
parties hereto be, become, and remain the sole and exclusive property of
Employer for any and all purposes and uses whatsoever, regardless of whether the
same were invented, created, written, developed, furnished, produced, or
disclosed by Employee or any other party, and Employee shall have no right,
title or interest of any kind or nature therein or thereto, or in any to any
results and proceeds therefrom. Employee agrees, during and after the Term
hereof, to execute any and all documents and agreements which Employer may deem
necessary and appropriate to effectuate the provisions of this Section 9. The
provisions of this Section 9 shall survive the expiration or terminations, for
any reason, of this Agreement and of Employee's employment.
10. DEATH DURING EMPLOYMENT. If Employee dies during the Term of
this employment, Employer shall pay to the estate of Employee the compensation
which
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would otherwise be payable to Employee up to the end of the month in which hers
death occurs.
11. TERMINATION OF AGREEMENT. Should any of the following events
occur, Employer may, at its election, terminate this Agreement by giving written
notice thereof to Employee, which such notice shall be effective immediately:
(a) Employee is physically or mentally incapacitated either
for a period of sixty (60) consecutive days, or for a total of ninety
(90) days in any twelve month period and is unable to perform the
essential functions of her job with or without reasonable
accommodations.
(b) Employee conducts herself in a manner substantially
detrimental to Employer, and constitutes on the part of the Employee
personal dishonesty, willful misconducts, breach of fiduciary duty
involving personal profit intentional failure to perform stated duties
of the Senior Vice President of the Employer, willful violation of any
law, governmental rule or regulation (other than traffic violations or
similar offenses) or final cease and desist order, or material breach
of this Agreement or for any of the reasons set forth in 12 USC -
1818(e) and (g), determined on a reasonable basis.
(c) Employee competes, in a manner prohibited by this
Agreement, with Employer during the Term hereof.
(d) Employee is convicted of a misdemeanor involving breach of
trust or is convicted of any felony.
(e) Employee engages in the illegal usage of any drug.
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(f) Any state or federal regulatory agency or court of
competent jurisdiction issues an order requiring Employee's removal
from any duties or responsibilities for Employer.
Termination or any other disciplinary actions for any of the reasons
stated in this Section 11 shall be deemed to be "for cause." In the event
Employer terminates or otherwise reduces the total value of Employee's Salary
and Benefits "for cause," Employer shall pay Employee the compensation and
benefits which would otherwise be payable to Employee up to the end of the month
in which the termination or disciplinary action occurs.
If Employer, for reasons other than cause (i) does not, at the end of
the term, renew this agreement for a period of at least one year, (ii) or
otherwise terminates this agreement, then the Employer shall pay Employee within
30 days of notice from Employee to the President of the Bank a lump sum equal to
six (6) months Salary then being paid plus any Salary then due. Such payments
will be conditioned, at the employer's option, upon the Employee's continuation
of this employment for 60 days after notice with full Salary and Benefits, which
shall be in addition to the lump sum payment made thereafter. Employee shall
vacate the premises of the Employer the last business day of the month in which
such lump sum payment is made.
The Employee may terminate her employment hereunder (i) at any time if
her health should become impaired to an extent that makes the continued
performance of her duties hereunder hazardous to her physical or mental health,
or (ii) upon sixty (60) days written notice for any other reason.
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12. COMPETITION DURING AND AFTER TERM. Employee agrees that during
her employment hereunder, and for a period of six (6) additional months if a
payment of the lump sum amount referred to in Section 11 has been made, she will
not, either separately, or in association with others, directly or indirectly,
as an agent, employee, owner, partner, stockholder, or otherwise, allow her name
to be used by, or establish, engage in, or become interested in any business,
trade or occupation in substantial competition with the principal business being
conducted by Employer, in any banking market of Employer where Employee has been
principally stationed, and in which Employer's business is presently being
conducted, as long as Employer, or any person, firm, or corporation deriving
title to the goodwill of, or shares from it, carries on a like business therein.
Employer and Employee acknowledge that during the term of the Employee's
employment, Employee will acquire special knowledge and/or skill that she can
effectively utilize in competition with Employer.
Employee agrees that the remedy at law for any breach by her of the
covenants contained herein will be inadequate, and that in the event of a
violation of the covenants contained herein, in addition to any and all legal
and equitable remedies which may be available, the said covenants may be
enforced by an injunction in a suit in equity, without the necessity of proving
actual damage, and that a temporary injunction may be granted immediately upon
the commencement of any such suit, and without notice. The parties hereto intent
that the covenants contained in this Section 12 shall be deemed to be a series
of separate covenants, one for each county of each state where Employer does
business and Employee has been stationed. If, in any judicial proceeding, a
court shall refuse to enforce any or all of the separate covenants deemed
included in such action, then such
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unenforceable covenants shall be deemed eliminated from the provisions hereof
for the purposes of such proceeding to the extent necessary to permit the
remaining separate covenants to be enforced in such proceeding. Furthermore, if
in any judicial proceeding a court shall refuse to enforce any covenant by
reason of the duration or extent thereof, such covenant shall be construed to
have only the maximum duration or extent permitted by law.
13. NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if sent by registered or
certified mail, postage prepaid, addressed as follows:
If to Employer: The Bank of Nashville
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
If to Employee: Xxxx X. Xxxxxxxx
000 Xxxxx Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxx 00000
The persons and addresses to which mailings may be made may be changed from time
to time by a notice mailed as aforesaid.
14. ACKNOWLEDGMENT OF PECULIAR VALUE OF SERVICES. The Employer and
Employee 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 parties hereby agree and consent that the other shall be
entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of this Agreement.
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15. WAIVER OF BREACH. No provisions of this Agreement may be
waived or discharged unless such waiver or discharge is agreed to in writing
signed by Employee and the Employer. No waiver by either party hereto at any
time of any breach by the other party hereto 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.
16. ASSIGNMENT. This Agreement is personal in nature and neither
of the parties hereto shall, without the consent of the other, assign, transfer
or delegate this Agreement or any rights or obligations hereunder except as
expressly provided for herein. Without limiting the generality of the foregoing,
Employee's right to receive payments hereunder shall not be assignable,
transferable or delegable, whether by pledge, creation of a security interest or
otherwise, other than by a transfer by hers will or by the laws of descent and
distribution and, in the event of any attempted assignment or transfer contrary
to this paragraph, the Employer shall have no liability to pay any amount so
attempted to be assigned, transferred or delegated.
17. ENTIRE AGREEMENT AND MODIFICATION. This instrument contains
the entire agreement of the parties hereto, and supersedes any and all prior
agreements, arrangements or understandings between the parties hereto relating
to the subject matter hereof. This Agreement may not be modified, changed, or
terminated by the parties hereto, unless such modification, change or
termination is expressly agreed in writing by the party against whom enforcement
of any waiver, change, modification, extension, or discharge is sought.
18. GOVERNING LAW. This Agreement shall be construed and enforced
in accordance with the laws of the State of Tennessee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the 23rd day of February, 1999.
EMPLOYER:
THE BANK OF NASHVILLE
By: /s/Xxxx X. Xxxxxxxxx, Xx.
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Xxxx X. Xxxxxxxxx, Xx., President and CEO
EMPLOYEE:
/s/Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx
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