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EXHIBIT 10.12
FINANCIAL ADVISOR AGREEMENT
THIS FINANCIAL ADVISOR AGREEMENT (the "Agreement") entered into as of the 1st
day of May, 1998, by and between The Bank of Nashville, Nashville, Tennessee
(the "Bank") and Xxxxxx X. Xxxxxxx (the "Employee").
WHEREAS, the Bank is, contemporaneously with the Agreement, entering into a Dual
Employee Program Agreement (the "Dual Employee Agreement") and a Lease Agreement
(the "Lease") (collectively, the Xxxx Xxxxx Agreements"), with LM Financial
Partners, Inc. ("LMFP") and Xxxx Xxxxx Financial Services, Inc. ("LMFS"); and
WHEREAS, the Xxxx Xxxxx Agreements contemplate that certain individuals shall
(i) be registered and qualified as necessary with the Securities and Exchange
Commission (the "SEC"), the National Association of Securities Dealers ("NASD")
and appropriate state regulatory authorities, (ii) shall be employed by LMFP in
addition to their employment by the Bank, and (iii) shall be licensed as
insurance agents with appropriate state regulatory authorities (the "Dual
Employees"); and
WHEREAS, the Bank and the Employee have agreed that the Bank shall employ the
Employee and the Employee shall serve as a Dual Employee.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the Bank and the Employee hereby agree as follows:
1. The Bank hereby employs the Employee as an employee-at-will and the Employee
hereby accepts employment by the Bank as an employee-at-will. There is
absolutely no intention that this Agreement be construed as a contract of
employment for any period of time, and it is agreed and understood that the Bank
may terminate the Employee at any time for any reason or for no specific reason.
2. The Employee, as a Dual Employee, shall be subject to the exclusive control
of LMFP and LMFS with respect to his conduct as a registered representative of
LMFP, and the Bank shall strictly honor such control relationship and shall not
have any involvement whatsoever in any of the securities brokerage, investment
advisory and insurance services provided by the Employee as a Dual Employee.
3. The Employee will be compensated based upon the monthly Program Payments
received by the Bank under the Dual Employee Agreement and the Rent payments
received by the Bank under the Lease to the extent such Program Payments and
Rent payments result from LMFP Products (as defined in the Xxxx Xxxxx
Agreements) sold by or credited to the Employee (the "Employee's Gross
Production") as follows:
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A. The Employee shall be credited with an amount equal to 46% of the
Employee's Gross Production for the preceding month (the Employee's
Credit").
B. The Employee's Credit shall be reduced by the following:
(i) the total amount paid by the Bank for any personal assistant
assigned to the Employee (the "Personal Assistant") with
respect to salary, employee benefits and the portion of FICA
taxes and medicare taxes paid by the Bank with respect to the
Personal Assistant;
(ii) amounts withheld by the Bank with respect to applicable
federal and state (if applicable) income, FICA, medicare and
other taxes or assessments the Bank is now or in the future
required to withhold;
(iii) the amount the Employee is required to pay for employee
benefits provided by the Bank, consistent with the Bank's
policies as applicable to Bank employees generally;
C. An amount equal to the Employee's Credit, reduced by the amounts in
paragraph 3B hereof shall be paid to the Employee by the 10th day of
each month.
4. The Employee shall be entitled to the services of one or more Personal
Assistants who shall be employees of the Bank and whose compensation and
benefits shall be reimbursed by the Employee to the Bank pursuant to paragraph
3B(i) above; provided, however, the terms of employment of any such Personal
Assistant, including, but not limited to, salary, benefits, hours and working
conditions, are subject to the prior written approval of the Bank and shall not
be altered or changed without the prior written approval of the Bank.
5. The Employee shall be granted options to purchase 4,992 shares (based on
1,000 options for each $100,000 gross production generated by the Employee as an
employee of Xxxx Xxxxx Xxxx Xxxxxx Incorporated for the 12 months immediately
preceding the date of this Agreement (the "LMWWI Gross Production")) of the
common stock of Community Financial Group, Inc. pursuant to and on the terms and
conditions of the Community Financial Group, Inc. 1997 Nonstatutory Stock Option
Plan.
6. As consideration for the transfer to the Bank of accounts originated by the
employee while an employee of Xxxx Xxxxx Xxxx Xxxxxx Incorporated, the Bank will
loan to the Employee, pursuant to the Promissory Note attached as Exhibit A to
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the Financial Advisor Promissory Note Repayment Agreement, which is attached
hereto and incorporated herein (the "Note Repayment Agreement"), $124,813.27 (an
amount equal to 25% of the LMWWI Gross Production, such Promissory Note to be
reduced by the Bank pursuant to the terms of the Note Repayment Agreement.
7. In the event the Employee's employment with the Bank is terminated coincident
with or following a change in control (as defined in the Note Repayment
Agreement), wether involuntarily by the Bank or voluntarily by the Employee for
Good Reason (as defined in the Note Repayment Agreement), the Employee shall
have the right, without payment to the Bank, to solicit for transfer any of the
clients the Employee served while acting as a Dual Employee.
8. In connection with the Employee's application to the Bank to become an
employee-at-will of the Bank, the Employee hereby certifies the following to be
true:
A. I am not currently subject to any state or federal
administrative enforcement order or judgment entered by any
state or federal securities administrator within the past five
(5) years and I am not subject to any state or federal
administrative enforcement order or judgment in which fraud or
deceit, including, but not limited to, making untrue
statements of material facts or omitting to state material
facts, was found and the order or judgment was entered within
the past five (5) years;
B. I am not subject to any state or federal administrative
enforcement order or judgment which prohibits, denies or
revokes the use of any exemption from registration in
connection with the offer, purchase or sale of securities;
C. I am not currently subject to any order, judgment or decree of
any court of competent jurisdiction temporarily or
preliminarily restraining or enjoining me, and I am not
subject to any jurisdiction permanently restraining or
enjoining me from engaging in or continuing any conduct or
practice in connection with the purchase or sale of any
security or involving the making of any false filing with a
state or federal securities administrator entered within the
past five (5) years; and
D. I have not been convicted within the past five (5) years of
any felony or misdemeanor in connection with the offer,
purchase or sale of any security or any felony involving
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fraud or deceit, including, but not limited to, forgery,
embezzlement, obtaining money under false pretenses, larceny
or conspiracy to defraud.
9. This Agreement shall be governed, construed and enforced in accordance with
the laws of the State of Tennessee.
10. The Bank's failure to enforce a breach of this Agreement will not constitute
a waiver of the Bank's right to enforce any other breach of this Agreement.
11. If any part of this Agreement shall be held invalid or unenforceable, that
part shall be deemed modified as necessary to make it effective, and the
remaining provisions of this Agreement shall remain in effect.
12. The Employee understands that the Bank is relying on the representations and
agreements evidenced herein and in the Note Repayment Agreement and the
Promissory Note which, it is agreed, incorporate the entire understanding
between the Employee and the Bank on the subject matter covered by this
Agreement and may not be changed except by a writing signed by a duly authorized
officer of the Bank and the Employee. The Bank shall have the right to assign
this Agreement, the Note Repayment Agreement and/or the Promissory Note to any
affiliate of the Bank. An "affiliate" of the Bank shall include any entity in
control of, controlled by or under common control with the Bank.
13. The Employee acknowledges that the Employee was given the opportunity to
read this Agreement and to seek the assistance of counsel before the Employee
decided to accept employment by the Bank and to sign this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Financial Advisor Agreement to
be executed as of the date first hereinabove written.
/s/Xxxxxx X. Xxxxxx /s/Xxxxxx X. Xxxxxxx
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Witness (Employee)
THE BANK OF NASHVILLE
ATTEST:
/s/Xxxx X. Xxxxxxxx, SVP By: /s/Xxxx X. Xxxxxxxxx, Xx.
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Title: President
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