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EXHIBIT 10.01
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
THIS FIRST AMENDMENT TO EMPLOYMENT AGREEMENT (sometimes herein this
"Amendment") is made as of the 2nd day of September, 1995, by and between THE
BANK OF NASHVILLE, a corporation formed under the laws of the State of Tennessee
(the "Employer"), and XXXX X. XXXXXXXXX, XX. (the "Employee").
WITNESSETH:
WHEREAS, Employer and Employee are parties to that certain Employment
Agreement dated September 2, 1992, which Employment Agreement had an initial
term through September 1, 1993; and
WHEREAS, by letter dated August 2, 1993 from Employer to Employee, the
term of such Employment Agreement was renewed and extended for the period from
September 2, 1993 through September 1, 1994; and
WHEREAS, by letter dated August 25, 1994 from Employer to Employee,
the term of such Employment Agreement was renewed and extended for the period
from September 2, 1994 through September 1, 1995 (such Employment Agreement as
extended and renewed pursuant to the August 2, 1993 letter described above and
as extended and renewed pursuant to the August 25, 1994 letter described above
is hereinafter referred to as the "Employment Agreement"); and
WHEREAS, Employer and Employee desire to amend the Employment
Agreement to renew and extend the Employment Agreement for the period from
September 2, 1995 through September 1, 1996 and to provide for two (2) one-year
renewal periods thereafter.
NOW, THEREFORE, in consideration of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Employer and Employee hereby agree as follows:
1. Paragraph 2 of the Employment Agreement is hereby amended by
deleting the second sentence therefrom in its entirety and inserting in lieu
thereof the follows:
Employer may renew this contract upon proper notice to Employee for up
to five (5) one-year renewal periods provided the compensation will be
maintained at least at the initial level and shall be negotiated
further as described below.
2. Employer and Employee hereby acknowledge and agree that the
Employment Agreement was properly extended and renewed for the period from
September 2, 1993 through September 1, 1994 pursuant to that certain letter
dated August 2, 1993 from Employer to Employee and that the Employment Agreement
was properly extended and renewed for the period from September 2, 1994 through
September 1, 1995 pursuant to that certain letter dated August 25, 1994 from
Employer to Employee. Employer and Employee hereby irrevocably waive any
requirement that notice of either such extension and renewal be given thirty
(30) days prior to the then expiration of the Employment Agreement.
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3. Employer and Employee hereby agree that the Employment Agreement
shall be and is hereby renewed and extended for the period from September 2,
1995 through September 1, 1996, and Employer and Employee hereby irrevocably
waive any requirement as otherwise set forth in the Employment Agreement
concerning notice of the extension and renewal for such period.
4. The provisions of this Amendment shall in no way alter any stock
options which Employer may have heretofore granted to Employee, and the
execution of this Amendment shall in no way be construed as an agreement by
Employer to grant Employee any additional stock options.
5. Except as hereby modified and amended, the Employment Agreement
shall otherwise remain in full force and effect and shall not be affected by
this Amendment.
IN WITNESS WHEREOF, Employer and Employee have executed this Amendment
on the date set forth below opposite each such party's signature, but effective
as of September 2, 1995.
EMPLOYER:
THE BANK OF NASHVILLE
Date: August 11, 1995 By:/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Vice President and
Corporate Secretary
EMPLOYEE:
Date: August 11, 1995 /s/ Xxxx X. Xxxxxxxxx, Xx.
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Xxxx X. Xxxxxxxxx, Xx.
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EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (hereinafter referred to as the "Agreement")
is dated this 2nd day of September, 1992, 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. XXXXXXXXX, XX.
(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 his employment, as herein defined, the
term of Employee's employment hereunder shall commence on
September 2, 1992, and shall continue thereafter for a period of
one year (hereinafter referred to as the "Term" with the end of
each Term being referred to as an "Anniversary Date"). Employer
may renew this contract upon proper notice to Employee for up to
two (2), one-year renewal periods provided the compensation will
be maintained at least at the initial level and shall be
negotiated further as described below. The Employer, through the
Secretary to its Board of Directors, must notify Employee thirty
(30) days prior to the expiration hereof of its decision to renew
or its reasons for not renewing, if for cause, as defined in
Section 11.
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3. COMPENSATION.
(a) Base Salary. As compensation for the services to be rendered
by Employee during the period of his 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
$160,000.00, 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 24 equal installments paid on the
15th and last day of each month. The Salary shall be subject to periodic review
and revision by the Board of Directors of the Employer but shall not be
decreased during the term of employment hereunder.
(b) Participation in Benefits Plans. Employee shall receive all
other benefits generally offered to other employees of the Employer
("Benefits").
(c) Incentive Compensation. In addition to Salary, Employee
shall be entitled to receive such bonus or incentive compensation payments as
the Board of Directors in its sole discretion may determine from time to time.
(d) Stock Options. Employee shall receive as additional
compensation stock options to purchase 20,000 shares of common stock of the
Employer for a cash purchase price of $6.00 per share which is equal to the
market price of the common stock of the Employer on the date of the grant. The
date of the grant shall be the date of this Agreement. The right to exercise the
stock option
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shall vest as to 10,000 shares immediately, as to 5,000 shares on September I,
1993 and as to the remaining 5,000 shares on September 1, 1994. The vesting of
the options is conditioned upon Employee being employed by Employer or its
successor on the vesting date.
All options may be exercised in increments or in whole at any time until
August 31, 2002.
(i) Reservation of Stock. The Employer covenants that while the option is
exercisable, it will reserve from its authorized and unissued common stock a
sufficient number of shares to provide for the delivery of stock pursuant to the
exercise of this option.
(ii) Protection Against Dilution. In any of the following events, occurring
hereafter, appropriate adjustment shall be made in the number of shares
deliverable upon the exercise of this option or the price per share to be paid
so as to maintain the proportionate interest of the option holder: (a)
recapitalization of the Employer through a split-up of the outstanding shares of
the common stock or a combination of the outstanding shares into a lesser
number; (b) declaration of a dividend on the common stock of the Employer,
payable in common stock or securities convertible into common stock; (c)
issuance of common stock at less than the price per share payable upon the
exercise of this option, or issuance of securities carrying conversion
privileges or bearing stock purchase options for common stock at more favorable
terms than provided by this option.
(iii) Merger. If the Employer, or any successor, shall be consolidated or
merged with another corporation, or substantially all of its assets shall be
sold to another corporation in exchange for stock with the view to distributing
such stock to its shareholders, each share of stock purchasable by this option
shall be replaced for the purposes hereof by the securities or property issuable
or distributable in respect of one share of common stock of this Employer, or
its successors, upon such consolidation, merger, or sale, and adequate provision
to that effect shall be made at the time thereof. If all or substantially all of
Employer or any successor shall be sold for cash then all invested options shall
vest and Employee may immediately exercise such options.
(iv) Shareholder's Rights. Until the valid exercise of this option, the
holder hereof shall not be entitled to any rights of a shareholder, but
immediately upon the exercise of this option and upon payment as provided
herein, the holder hereof shall be deemed a record holder of the common stock.
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(e) Incentive Phantom Stock Plan. Employer shall grant employee
60,000 Phantom Stock Appreciation Rights pursuant to Employers Incentive Phantom
Stock Appreciation Rights Plan. The Date of Grant shall be January l, 1993.
(f) 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 engaged as the President and Chief Executive
Officer of Employer, to render services in such capacity which are consonant
with the position of President and Chief Executive Officer. In addition,
Employee shall perform such other duties as are reasonably required of him by
Employer in his 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 Chief Executive Officer
with such duties as are consistent with those of a Chief Executive Officer. If
Employee is elected or appointed an 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 his employment
hereunder, Employee shall not, without the prior written consent of the Board of
Directors, disclose to any person, other than a person to whom disclosure is
necessary or appropriate in connection with the performance by Employee of his
duties as an
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officer of the Employer, any confidential information obtained by HIM WHILE IN
the employ of the Company with 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 he 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 his compensation shall be paid
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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 his services
efficiently, to the best of his ability, and to Employer's reasonable
satisfaction. Employee agrees that throughout the Term of this Agreement, he
will devote Substantially all of his time, care, attention, and efforts to
Employer's business. Employee agrees that throughout the Term of this Agreement
he 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. Notwithstanding the foregoing,
Employee is permitted to engage in or become interested in the businesses and
activities enumerated in Schedule 1 annexed hereto, provided that his interest
or involvement therein does not otherwise violate any other term or provisions
of this Agreement other than the preceding sentence of this Section 8. Employee
agrees that all of his activities as an 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 and 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 his services hereunder,
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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 Pasture therein or
thereto, or in and 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 termination, for any reason, of this Agreement and of Employee's
employment.
10. DEATH DURING EMPLOYMENT. If Employee dies during the Term of his
employment, Employer shall pay to the estate of Employee the compensation which
would otherwise be payable to Employee up to the end of the month in which his
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 his job with or without reasonable accommodations.
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(b) Employee conducts himself in a manner substantially
detrimental to Employer, and constitutes on the part of the Employee
personal dishonesty, willful misconduct, breach of fiduciary duty
involving personal profit, intentional failure to perform stated
duties of the Chief Executive Officer of the Employer, willful
violation of any law, governmental rule or regulation (other than
traffic violations of 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 section 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 dishonesty
or breach of trust or is convicted of any felony.
(e) Employee engages in the illegal usage of any drug.
(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 ll 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. However, should Salary and
Benefits be reduced for all employees with
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Employee's concurrence as a Board member, the reduction shall not invoke this
provision.
If the contract is not renewed as provided in Section 2 or Employer reduces
Employee's Salary or Benefits for reason other than cause, then the Employer
shall pay Employee within 30 days of notice from Employee to the Secretary of
the Board of Directors 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 his employment for 60
days after notice with full Salary and Benefits, which shall be in addition to
the lump sum payment made thereafter. Employee will 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 his employment hereunder (i) at any time if his
health should become impaired to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health, or (ii) upon
sixty (60) days written notice for any other reason.
12. COMPETITION DURING AND AFTER TERM. Employee agrees that during his
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, he will not,
either separately, jointly, or in association with others, directly or
indirectly, as an agent, employee, owner, partner, stockholder, or otherwise,
allow his name to be used by, or establish, engage in, or become interested in
any business, trade or occupation in substantial
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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. Notwithstanding the preceding
sentence, Employee shall be allowed to engage in or be interested in the
businesses and activities enumerated in Schedule 1 annexed hereto, provided that
his interest or involvement therein does not otherwise violate any other term or
provision of this Agreement other than the preceding sentence of this Section
12. Employer and Employee acknowledge that during the Term of Employee's
employment, Employee will acquire special knowledge and/or skill that he can
effectively utilize in competition with Employer.
Employee agrees that the remedy at law for any breach by him 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 intend
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
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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
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
ATTN: Corporate Secretary
If to Employee: Xxxx X. Xxxxxxxxx, Xx.
000 Xxxxxxxx Xxxxx
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
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entitled to a decree of specific performance, mandamus or other appropriate
remedy to enforce performance of this Agreement.
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 his 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.
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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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 28th of September, 1992.
EMPLOYER:
THE BANK OF NASHVILLE
By:/s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx, Corporate
Secretary
EMPLOYEE:
/s/ Xxxx X. Xxxxxxxxx, Xx.
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Xxxx X. Xxxxxxxxx, Xx.
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SCHEDULE 1
Xxxxxxx Properties
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