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EXHIBIT 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated as of
_________________, 1998 by and between First American National Bank, having its
principal offices in Nashville, Tennessee (hereinafter "FANB") and ▇▇▇▇▇▇ ▇.
(▇▇▇▇▇) Green (hereinafter "Executive");
W I T N E S S E T H:
WHEREAS, FANB is regularly engaged in the business of banking
and the providing of financial services;
WHEREAS, The Middle Tennessee Bank ("MTB") has merged with
and into FANB;
WHEREAS, Executive formerly served as a Director and President
of MTB and was a principal shareholder of MTB and has significant experience and
expertise in the businesses of banking and providing of financial services; and
WHEREAS, FANB wishes to employ Executive upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, premises considered, in consideration of the
mutual covenants set out below, and for other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties hereto
intending to be legally bound agree as follows:
1. EMPLOYMENT. FANB shall employ Executive, and Executive
accepts employment with FANB, under the terms and conditions set forth in this
Agreement for the period beginning on the date hereof and ending as provided in
paragraph 4 hereof (the "Employment Period")" provided, however, that this
Agreement shall be of no force and effect until the occurrence of the Effective
Time of the merger of MTB with and into FANB pursuant to the Agreement and Plan
of Merger by and between FANB and MTB dated as of May 26, 1998. The date on
which Executive ceases to be employed by FANB and/or its subsidiaries (as
defined below) or its successors or assigns is referred to herein as the
"Termination Date." "Term" shall mean December 31, 2001 or such other date that
is three calendar years after the date hereof.
2. POSITION AND DUTIES.
(a) During the Employment Period, Executive shall
render such administrative, sales, marketing and other executive services
to FANB, its affiliates and its subsidiaries as FANB's board of directors (the
"Board") or its president or his designee may from time to time direct,
including serving as the Chairman of FANB's Maury County Advisory Board of
Directors.
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(b) During Phase 1 (as defined below) of the
Employment Period, Executive shall devote his best efforts and his full business
time and attention to the business and affairs of FANB, its affiliates and its
subsidiaries. During Phase 2 (as defined below) of the Employment Period,
Executive shall devote his best efforts and his business time and attention for
twenty regularly scheduled hours per week to the business and affairs of FANB,
its affiliates and its subsidiaries. Executive shall perform his duties and
responsibilities to the best of his abilities in a diligent, trustworthy,
businesslike and efficient manner. During the Employment Period, FANB shall
provide Executive with an office located in Columbia, Tennessee from which the
majority of Executive's duties and responsibilities will be conducted.
(c) For purposes of this Agreement, "subsidiaries"
shall mean any corporation of which the securities having at least 50% of the
voting power in electing directors are, at the time of determination, owned by
FANB or FAC, directly or through one or more subsidiaries. The term "affiliate"
shall mean a direct or indirect subsidiary of either FANB or FAC.
3. SALARY AND BENEFITS.
(a) During the Employment Period, for the first full
calendar year from the date hereof ("Phase 1"), Executive's base salary
shall be $140,000 per annum (the "Phase 1 Base Salary"); and, for the second
calendar year from the date hereof ("Phase 2"), Executive's base salary shall be
$70,000 per (the "Phase 2 Base Salary"). The Base Salary referred to in this
Paragraph 3(a) shall be payable in regular installments in accordance with
FANB's general payroll practices. In addition, during the Employment Period,
Executive shall be entitled to participate in all of FANB's benefit programs
(but not incentive programs) for which similarly situated Executives of FANB and
its subsidiaries are generally eligible.
(b) FANB shall reimburse Executive for all reasonable
expenses incurred by him in the course of performing his duties under
this Agreement which are consistent with FANB's policies in effect from time to
time with respect to travel, entertainment and other business expenses, subject
to FANB's requirements with respect to reporting and documentation of such
expenses.
(c) In addition to the Phase 1 Base Salary and the
Phase 2 Base Salary, Executive shall receive a bonus of $140,000 upon completion
of Phase 1 and a bonus of $70,000 upon completion of Phase 2.
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(d) For the twelve month period following the later
of i) the end of the Employment Period or ii) the Termination Date, during
either of which Executive shall remain subject to the provisions of paragraph 7
hereof ("Phase 3"), FANB agrees to pay Executive $150,000 payable in arrears in
equal monthly installments ("Phase 3 Payment"); provided, however, in the event,
that Executive terminates employment with FANB or is terminated by FANB for any
reason, Executive shall receive as sole consideration for ▇▇▇▇▇ ▇, ▇▇ ▇▇▇ ▇▇▇ ▇▇
▇▇▇▇▇ ▇, the aggregate of the Phase 1 Base Salary, the Phase 2 Base Salary, the
bonuses referred to in paragraph 3(b) hereof, less any amounts actually paid to
Executive under this Agreement and shall not be entitled to the Phase 3 Payment.
Except as otherwise required by law, following the first of i) the end of the
Employment Period or ii) the Termination Date, Executive shall cease to be
entitled to participate in any FANB benefit programs.
4. TERMINATION.
(a) Unless renewed by the mutual agreement of FANB
and Executive, the Employment Period shall end on December 31, 2000 or such
other date that is two calendar years from the date hereof; provided that (i)
the Employment Period shall terminate prior to such date upon Executive's
resignation, death or permanent disability or incapacity (as determined by the
Board in its good faith judgment) and (ii) the Employment Period may be
terminated by FANB at any time prior to such date for Cause (as defined below)
or without Cause.
(b) If the Employment Period is terminated by FANB
without Cause prior to the Termination Date, Executive shall be entitled
to receive his Phase 1 Base Salary and Phase 2 Base Salary and each of the
bonuses referred to in paragraph 3(c) hereof, less any amounts actually paid to
Executive under this Agreement, so long as Executive has not materially breached
the provisions of this Agreement. The Base Salary payments and bonuses described
in this paragraph 5(b) shall be payable in regular installments in accordance
with FANB's general payroll practices.
(c) If the Employment Period is terminated as a
result of Executive's death or permanent disability or incapacity, Executive
or his estate shall be entitled to receive his Phase 1 Base Salary and Phase 2
Base Salary, including each of the bonuses referred to paragraph 3(c) hereof,
less any amounts actually paid to Executive under this Agreement.
(d) All of Executive's rights to benefits (if any)
accruing after the Termination Date shall cease upon such termination.
(e) For purposes of this Agreement, "Cause" shall
mean (i) the commission of a felony or a crime involving moral turpitude or
the commission of any other act involving dishonesty, disloyalty or fraud with
respect to FANB or any of its subsidiaries or affiliates; (ii) repeated failure
to perform duties as reasonably directed by FANB's president or his designee,
(iii) Executive has committed a violation of any laws and/or regulations
applicable to FANB and/or its affiliates; or (iv) any other material breach of
this Agreement.
5. CONFIDENTIAL INFORMATION. Executive acknowledges that in
the course of his engagement by FANB he will have access to confidential
proprietary information and data concerning the business of FANB and its
affiliates, collectively, the "Information", which FANB
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desires to protect. Executive understands that the Information, to the extent
not otherwise published or known generally, is confidential and proprietary, and
agrees not to reveal such Information to persons outside FANB; provided,
however, that Executive may reveal, utilize, and otherwise employ the
Information in any manner required by law or as may be necessary in carrying out
his duties hereunder. If this Agreement is terminated for any reason, the
obligations contained in this Section 5 shall survive forever such termination.
6. INVENTIONS AND PATENTS. Executive agrees that all
inventions, innovations, improvements, developments, methods, designs, analyses,
drawings, reports, and all similar or related information which relates to
FANB's or any of its subsidiaries' actual or anticipated business, research and
development or existing or future products or services and which are conceived,
developed or made by Executive while employed by FANB and/or its subsidiaries
("Work Product") belong to FANB or such subsidiary. Executive will promptly
disclose such Work Product to the Board and perform all actions reasonably
requested by the Board (whether during or after the Employment Period) to
establish and confirm such ownership (including, without limitation,
assignments, consents, powers of attorney and other instruments).
7. NON-COMPETE, NON-SOLICITATION.
(a) Executive acknowledges that in the course of his
employment with FANB he has become and will become familiar with the information
concerning FANB, its affiliates and subsidiaries and that his services have been
and will be of special, unique and extraordinary value to FANB. Therefore,
Executive agrees that, until expiration of the Term (the "Noncompete Period"),
Executive shall not directly or indirectly own, manage, control, participate in,
consult with, render services for, or in any manner engage in any business
competing with the businesses of FANB or its subsidiaries or affiliates as such
businesses exist or are in the process on the date of the termination of
Executive's employment, within Maury, Lewis, Hickman, Bedford, Lawrence, Giles,
Marshall, Williamson, and Davidson Counties, Tennessee. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇, and
solely in Davidson County, Tennessee, Executive shall be specifically permitted
to engage in businesses relating to the provision of financial services except
to the extent that such businesses engages in the business of commerical
banking, but shall, in all other respects, be subject to paragraph 7. Nothing
herein shall prohibit Executive from being the passive owner of not more than 1%
of the outstanding stock of any class of a corporation which is publicly traded,
so long as Executive has no active participation in the business of such
corporation.
During the Noncompete Period, Executive shall not
directly or indirectly through another entity (i) induce or attempt to induce
any employee of FANB or any affiliate or subsidiary to leave the employ of FANB
or affiliate or subsidiary, or in any way interfere with the relationship
between FANB or any subsidiary or affiliate and any employee thereof, (ii) hire
any person who was an employee of FANB or any subsidiary or affiliate at any
time during the Employment Period, or (iii) induce or attempt to induce any
customer, supplier, licensee or other business relation of FANB or any affiliate
or subsidiary to cease doing business with FANB or affiliate or subsidiary, or
in any way interfere with the relationship between any such customer, supplier,
licensee or business relation and FANB or any affiliate or subsidiary.
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8. ENFORCEMENT. If, at the time of enforcement of paragraph 5,
6 or 7 of this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area. Because
Executive's services are unique and because Executive has access to Confidential
Information and Work Product, the parties hereto agree that money damages would
be an inadequate remedy for any breach of this Agreement. Therefore, in the
event of a breach or threatened breach of this Agreement, FANB or its successors
or assigns may, in addition to other rights and remedies existing in their
favor, apply to any court of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce, or prevent any violations
of, the provisions hereof (without posting a bond or other security).
9. EXECUTIVE REPRESENTATIONS. Executive hereby represents and
warrants to FANB that (i) the execution, delivery and performance of this
Agreement by Executive does not and will not conflict with, breach, violate or
cause a default under any contract, agreement, instrument, order, judgment or
decree to which Executive is a party or by which he is bound, (ii) Executive is
not a party to or bound by an employment agreement, noncompete agreement or
confidentiality agreement with any other person or entity and (iii) upon the
execution and delivery of this Agreement by FANB, this Agreement shall be the
valid and binding obligation of Executive, enforceable in accordance with its
terms.
10. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between Executive and FANB with respect to the subject matter
hereof. There are no covenants, agreements, understandings, representations or
warranties, oral or written, between Executive and FANB relating to the subject
matter of this Agreement other than those set forth herein.
11. WAIVER. No waiver of any right or remedy under any term
of this Agreement shall in any event be deemed to apply to any subsequent
default under the same or any other term contained herein.
12. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
13. NOTICES. Any notice or other communication required or
permitted to be given under this Agreement shall be in writing and deemed to be
properly given when delivered in person or three days after being sent by
certified or registered United States mail, return receipt required, postage
prepaid, addressed:
If to Executive:
▇▇▇▇▇▇ ▇. (▇▇▇▇▇) Green
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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If to FANB: With a copy to:
First American National Bank First American National Bank
First American Center First American Center
Nashville, TN 37237 ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Attn.: General Counsel
Either party may change his or its address for notices hereunder from time to
time in the manner set forth above.
14. JOINT PREPARATION. This Agreement is to have been prepared
jointly by Executive and FANB, and any uncertainty or ambiguity existing herein
shall not be interpreted against either party, but shall be interpreted
according to the rules of interpretation for arms-length agreements.
15. RULES OF CONSTRUCTION. Unless the context otherwise
requires, words in the singular number include the plural, and in the plural
include the singular, words of the masculine gender include the feminine and the
neuter, and when the sense so indicates, words of the neuter gender may refer to
any gender. The names of the parties, the date, and the recitals set out above
written are all a part of this Agreement. The captions and section numbers
appearing in this Agreement are inserted only as a matter of convenience; they
do not define, limit, construe, or describe the scope or intent of the
provisions of this Agreement.
16. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
either party hereto may execute this Agreement by signing one or more
counterparts.
17. ACTIONS CONTRARY TO LAW. Nothing contained in this
Agreement shall require Executive or FANB to engage in any conduct or perform
any act contrary to law.
18. COSTS. In the event of a dispute between Executive and
FANB involving the terms of this Agreement which results in the filing of suit,
the prevailing party shall be paid and reimbursed by the other for all costs and
expenses, including all defense costs, investigation costs, and reasonable
attorneys' fees, paid or incurred by such prevailing party in connection with
such dispute.
19. CHOICE OF LAW, JURISDICTION, VENUE. This Agreement is
entered into and is intended to be performed in the State of Tennessee and shall
be governed by the laws of this State. Any action, claim, or dispute relating to
the terms of this Agreement shall be brought in the appropriate state or federal
court physically located in Nashville, Davidson County, Tennessee.
20. AMENDMENT. This Agreement may be modified or amended only
upon the written agreement of Executive and FANB.
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21. ASSIGNMENT. This Agreement shall be binding upon, inure
to the benefit of and be enforceable by each of FANB and its successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first mentioned above.
FIRST AMERICAN NATIONAL BANK
BY:__________________________
ATTEST:____________________________
TITLE:_______________________
EXECUTIVE
ATTEST:____________________________ ______________________________
▇▇▇▇▇▇ ▇. (▇▇▇▇▇) GREEN
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