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EXHIBIT 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made effective as of April 22, 1998, by and between
Pinnacle Bancshares, Inc. (the "Company"), Pinnacle Bank (the "Bank") and ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇. (the "Employee").
WHEREAS, the Company and the Bank wish to assure retention of the
services of the Employee for the period provided in this Agreement; and
WHEREAS, the Employee is willing to serve in the employ of the Bank for
said period.
WHEREAS, the Boards of Directors of each of the Company and the Bank
have separately determined that the term of the Employee's employment hereunder
shall be for a period commencing on April 22, 1999 and ending 36 months
thereafter (or such earlier date as is determined in accordance with Section 9),
unless extended in accordance with Section 5; and
WHEREAS, the Bank is currently paying the Employee a salary at the rate
of $120,000 per annum; and
WHEREAS, the Boards of Directors of each of the Company and the Bank
and the Employee have determined that it is in their respective best interests
to amend and restate the Agreement in order to reflect the extended term of
employment hereunder and the Employee's current salary;
NOW, THEREFORE, the Agreement shall be amended and restated as follows,
with such amendment to be effective as of January 26, 2000:
1. Employment. The Employee is employed as the President and Chief
Executive Officer of each the Company and the Bank. The Employee shall render
such administrative and management services for each of the Company and the Bank
as are currently rendered and as are customarily performed by persons situated
in a similar executive capacity. The Employee shall also promote, by
entertainment or otherwise, as and to the extent permitted by law, the business
each of the Company and the Bank. The Employee's other duties shall be such as
the Board of Directors of each of the Company and the Bank may from time to time
reasonably direct, including normal duties as an officer of the Company and the
Bank.
2. Base Compensation. The Bank agrees to pay the Employee during the
term of this Agreement a salary at the rate of $120,000 per annum, payable in
cash not less frequently than monthly; provided, however, that such salary shall
be reduced by any salary paid to the Employee by the Company. The Board of
Directors of the Bank shall review, not less often than annually, the rate of
the Employee's salary, and in its sole discretion may decide to adjust his
salary; provided, however, that any reduction of the Employee's salary shall be
commensurate with a general reduction in the salaries of the Bank's senior
officers.
3. Discretionary Bonuses. The Employee may be entitled to annual
bonuses at the sole discretion of the Board. No other compensation provided for
in this Agreement shall be deemed a substitute for the Employee's right to
participate in such discretionary bonuses.
4. (a) Participation in Retirement, Medical and Other Plans. The
Employee shall participate in any plan that the Company or the Bank maintains
for the benefit of its employees if the plan relates to (i) pension,
profit-sharing, or other retirement benefits, (ii) medical insurance or the
reimbursement of medical or dependent care expenses, or (iii) other group
benefits, including disability and life insurance plans.
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(b) Employee Benefits; Expenses. The Employee shall
participate in any fringe benefits which are or may become available to the
senior management employees of the Company and the Bank and which are
commensurate with the responsibilities and functions to be performed by the
Employee under this Agreement. The Employee shall be reimbursed for all
reasonable out-of-pocket business expenses which he shall incur in connection
with his services under this Agreement upon substantiation of such expenses in
accordance with the policies of the Company and the Bank.
(c) Liability Insurance; Indemnification. The Company and/or
the Bank shall provide the Employee (including his heirs, executors, and
administrators) with coverage under a standard directors' and officers'
liability insurance policy at their expense, or in lieu thereof, shall indemnify
the Employee (and his heirs, executors, and administrators) to the fullest
extent permitted under applicable law 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 Company and 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 limited to, judgments, court
costs and attorneys' fees and the cost of reasonable settlements, and such
settlements to be approved by the Board of Directors of each of the Company and
the Bank; provided, however, that such indemnification shall not extend to
matters as to which the Employee is finally adjudged to be liable for willful
misconduct or gross negligence in the performance of his duties as a director or
officer.
5. Term. Each of the Company and the Bank hereby employs the Employee,
and the Employee hereby accepts such employment under this Agreement, for the
period commencing on April 22, 1999 (the "Effective Date") and ending 36 months
thereafter (or such earlier date as is determined in accordance with Section 9).
Additionally, on each annual anniversary date from the Effective Date, the
Employee's term of employment may be extended for an additional one-year period
beyond the then effective expiration date; provided, however, that the Board of
Directors of the Company and the Bank each determines in a duly adopted
resolution that the performance of the Employee has met the Board's requirements
and standards and that this Agreement shall be extended.
6. Loyalty; Noncompetition.
(a) During the period of his employment hereunder and except for
illnesses, reasonable vacation periods, and reasonable leaves of absence, the
Employee shall devote all his full business time, attention, skill, and efforts
to the faithful performance of his duties to the Company and the Bank hereunder
and/or to their affiliates; provided, however, that from time to time, the
Employee may serve on the boards of directors of, and hold any other offices or
positions in, companies or organizations which will not present, in the
reasonable opinion of the Board, any conflict of interest with the Company or
the Bank or any of its subsidiaries or affiliates, or unfavorably affect the
performance of the Employee's duties pursuant to this Agreement, or will not
violate any applicable statute or regulation. "Full business time" is hereby
defined as that amount of time usually devoted to like companies by similarly
situated executive officers. During the term of his employment under this
Agreement, the Employee shall not engage in any business or activity contrary to
the business affairs or interests of the Company, the Bank and/or their
affiliates, or be gainfully employed in any other position or job other than as
provided above.
(b) In consideration of his right to receive the payments described
in this Agreement, the Employee covenants and agrees that, for the period
beginning on the voluntary termination of his employment hereunder pursuant to
Section 9(f) or 11(b)(2) hereof and ending 12 months after the effective date of
such termination, he shall not: (i) within ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Counties,
Alabama, engage directly or indirectly, as an individual, in partnership, or
through any corporation or unincorporated association as an owner, proprietor,
director, officer, other employee, consultant, agent, representative or
otherwise, in any business which directly competes with the Company, the Bank or
their successors in interest, in any line of business or component thereof; or
(ii) recruit or solicit for employment any current or future employee of the
Company, the Bank or any of their successors in interest. The provisions of this
Section 6(b) shall survive any termination of this Agreement.
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(c) Nothing contained in this Section 6 shall be deemed to prevent
or limit the Employee's right to invest in the capital stock or other securities
of any business dissimilar from that of the Company or the Bank, or, solely as a
passive or minority investor, in any business.
7. Standards. The Employee shall perform his duties under this
Agreement in accordance with such reasonable standards as the Board may
establish from time to time. The Company and the Bank will provide the Employee
with the working facilities and staff customary for similar executives and
necessary for him to perform his duties.
8. Vacation and Sick Leave. At such reasonable times as the Board of
Directors of the Bank shall in its discretion permit, the Employee shall be
entitled, without loss of pay, to absent himself voluntarily from the
performance of his employment under this Agreement, all such voluntary absences
to count as vacation time; provided that:
(a) The Employee shall be entitled to an annual vacation in
accordance with the policies that the Board of Directors of the Bank
periodically establishes for senior management employees. The timing of
vacations shall be scheduled in a reasonable manner by the Board of Directors of
the Bank. The Employee shall not be entitled to receive any additional
compensation on account of his failure to take a vacation; nor shall he be
entitled to accumulate unused vacation from one fiscal year to the next except
to the extent authorized by the Board of Directors for senior management
officials.
(b) The Employee shall not receive any additional compensation from
the Bank on account of his failure to take a vacation or sick leave, and the
Employee shall not accumulate unused vacation or sick leave from one fiscal year
to the next, except in accordance with the policies of the Bank.
(c) In addition to the aforesaid paid vacations, the Employee shall
be entitled without loss of pay, to absent himself voluntarily from the
performance of his employment hereunder for such additional periods of time and
for such valid and legitimate reasons as the Board of Directors of the Company
and/or the Bank may in its discretion determine. Further, the Board may grant to
the Employee a leave or leaves of absence, with or without pay, at such time or
times and upon such terms and conditions as such Board in its discretion may
determine.
(d) In addition, the Employee shall be entitled to an annual sick
leave benefit as established by the Board of Directors of the Bank for senior
management officials of the Bank.
9. Termination and Termination Pay. Subject to Section 11 hereof, the
Employee's employment hereunder may be terminated under the following
circumstances:
(a) Death. The Employee's employment under this Agreement shall
terminate upon his death during the term of this Agreement, in which event the
Employee's estate shall be entitled to receive the compensation due the Employee
for the remaining term of the contract, payable on a monthly basis, plus any
accrued and unpaid discretionary bonus due Employee at the time of his death,
payable in a lump sum amount within 30 days of the Employee's death. In
addition, the Bank shall maintain the existing medical insurance for the
Employee's spouse for six months after the Employee's death.
(b) Disability. The Company and the Bank may terminate the
Employee's employment after having established the Employee's Disability. For
purposes of this Agreement, "Disability" means a physical or mental infirmity
which impairs the Employee's ability to substantially perform his duties under
this Agreement and which results in the Employee becoming eligible for long-term
disability benefits under the Bank's long-term disability plan which the Bank
shall maintain during the term of this Agreement. The Employee shall be entitled
to the compensation and benefits provided for under this Agreement for (i) any
period during the term of this Agreement and prior to the establishment of the
Employee's Disability during which the Employee is unable to work due to the
physical or mental infirmity, or (ii) any period of Disability which is prior to
the Employee's
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termination of employment pursuant to this Section 9(b); provided, that any
benefits paid pursuant to the Bank's long-term disability plan will continue in
accordance therewith.
(c) Just Cause. The Board of Directors of the Company and/or the
Bank may, by written notice to the Employee, immediately terminate his
employment at any time, for Just Cause. The Employee shall have no right to
receive compensation or other benefits for any period after termination for Just
Cause. Termination for "Just Cause" shall mean termination because of, in the
good faith determination of the Board, the Employee'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 (other than traffic violations or similar offenses) or
final cease-and-desist order, or material breach of any provision of this
Agreement. No act, or failure to act, on the Employee's part shall be considered
"willful" unless he has acted, or failed to act, with an absence of good faith
and without a reasonable belief that his action or failure to act was in the
best interest of the Company and the Bank. Notwithstanding the foregoing, the
Employee shall not be deemed to have been terminated for Just Cause unless there
shall have been delivered to the Employee a copy of a resolution duly adopted by
the affirmative vote of not less than a majority of the entire membership of the
Board of Directors of each of the Company and the Bank at a meeting of each
Board called and held for that purpose (after reasonable notice to the Employee
and an opportunity for the Employee to be heard before the Board), finding that
in the good faith opinion of the Board the Employee was guilty of conduct set
forth above in the third sentence of this Subsection (c) and specifying the
particulars thereof in detail. If following such meeting the Employee is
reinstated, he shall be entitled to receive back pay for the period following
termination and continuing through reinstatement.
(d) Without Just Cause; Constructive Discharge. (1) The Board of
Directors of the Company and/or the Bank may, by written notice to the Employee,
immediately terminate his employment at any time for a reason other than Just
Cause, in which event the Employee shall be entitled to receive the following
compensation and benefits (unless such involuntary termination occurs within the
time period set forth in Section 11(a) hereof, in which event the benefits and
compensation provided for in Section 11 shall apply): (i) the salary provided
pursuant to Section 2 hereof, up to the date of termination of the term as
provided in Section 5 hereof (including any renewal term) of this Agreement (the
"Expiration Date"), plus said salary for an additional 12-month period, and (ii)
at the Employee's election, either (A) cash in an amount equal to the cost to
the Employee of obtaining all health, life, disability and other benefits which
the Employee would have been eligible to participate in through the Expiration
Date based upon the benefit levels substantially equal to those that the Company
and/or the Bank provided for the Employee at the date of termination of
employment, or (B) continued participation under such benefit plans through the
Expiration Date, but only to the extent the Employee continues to qualify for
participation therein. All amounts payable to the Employee shall be paid, at the
option of the Employee, either (I) in periodic payments through the Expiration
Date, or (II) in one lump sum within 10 days of such termination.
(2) The Employee may voluntarily terminate his employment under
this Agreement, and the Employee shall thereupon be entitled to receive the
compensation and benefits payable under Section 9(d)(1) hereof, within 90 days
following the occurrence of any of the following events, which has not been
consented to in advance by the Employee in writing (unless such voluntary
termination occurs within the time period set forth in Section 11(b) hereof, in
which event the benefits and compensation provided for in Section 11 shall
apply): (i) the requirement that the Employee move his personal residence, or
perform his principal executive functions, more than 50 miles from his primary
office; (ii) a material reduction without reasonable cause in the Employee's
base compensation which is not commensurate with a general reduction in the
salaries of senior officers or as the same may be changed by mutual agreement
from time to time; (iii) the failure by the Company and/or the Bank to continue
to provide the Employee with compensation and benefits provided for under this
Agreement, as the same may be increased from time to time, or with benefits
substantially similar to those provided to him under any of the employee benefit
plans in which the Employee now or hereafter becomes a participant, or the
taking of any action by the Company and/or Bank which would directly or
indirectly reduce any of such benefits or deprive the Employee of any material
fringe benefit enjoyed by him; (iv) the assignment to the Employee of duties and
responsibilities materially different from those normally associated with his
position as referenced at Section 1; (v) a failure to elect or reelect the
Employee to the Board of Directors of the Company or the Bank; (vi) a material
diminution or reduction in the Employee's responsibilities or authority
(including reporting responsibilities) in
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connection with his employment; or (vii) a material reduction in the secretarial
or other administrative support of the Employee.
(3) In the even that Section 280G of the Internal Revenue Code
of 1986, as amended (the "Code") becomes applicable to payments made under this
Section 9(d), and the payments exceed the "Maximum Amount" as defined in Section
11(a)(1) hereof, the payments shall be reduced as provided by Section 11(a)(2)
of this Agreement.
(e) Termination or Suspension Under Federal Law. (1) If the Employee
is removed and/or permanently prohibited from participating in the conduct of
the Bank's affairs by an order issued under Sections 8(e)(4) or 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA") (12 U.S.C. 1818(e)(4) and (g)(1)), all
obligations of the Company and the Bank under this Agreement shall terminate, as
of the effective date of the order, but vested rights of the parties shall not
be affected.
(2) If the Bank is in default (as defined in Section 3(x)(1) of
the FDIA), all obligations under this Agreement shall terminate as of the date
of default; however, this Paragraph shall not affect the vested rights of the
parties.
(3) If a notice served under Section 8(e)(3) or (g)(1) of the
FDIA (12 U.S.C. 1818(e)(3) or (g)(1)) suspends and/or temporarily prohibits the
Employee from participating in the conduct of the Bank's affairs, the Bank's
obligations under this Agreement shall be suspended as of the date of such
service, unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Bank may in its discretion (i) pay the Employee all or part
of the compensation withheld while its contract obligations were suspended, and
(ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(f) Voluntary Termination by Employee. The Employee may voluntarily
terminate employment with the Company and the Bank during the term of this
Agreement upon at least 30 days' prior written notice to the Board of Directors
of each of the Company and the Bank, in which case the Employee shall receive
only his compensation, vested rights and employee benefits up to the date of his
termination (unless such voluntary termination occurs pursuant to Section
9(d)(2) or 11(b) hereof, in which event the benefits and compensation provided
for in Section 9(d) or 11, as applicable, shall apply).
10. No Mitigation. The Employee shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other employment
or otherwise and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to the Employee in any subsequent employment.
11. Change in Control.
(a) Change in Control; Involuntary Termination. (1) Notwithstanding
any provision herein to the contrary, if the Employee's employment under this
Agreement is terminated by the Company or the Bank, without the Employee's prior
written consent and for a reason other than Just Cause, in connection with or
within 12 months after any Change in Control (as hereafter defined) of the Bank
or the Company, the Employee shall, subject to paragraph (2) of this Section
11(a), be paid an amount equal to the difference between (i) the product of 2.99
times his "base amount" as defined in Section 280G(b)(3) of the Code and
regulations promulgated thereunder (the "Maximum Amount"), and (ii) the sum of
any other parachute payments (as defined under Section 280G(b)(2) of the Code)
that the Employee receives on account of the Change in Control. Said sum shall
be paid in one lump sum within 10 days of such termination, and shall be paid in
lieu of the payment of any benefits under Section 9 hereof. The Bank shall also
maintain existing insurance for six months after termination of the Employee's
employment, or if Employee dies within such six months, the Bank shall maintain
health insurance for the Employee's spouse, if living, for the remainder of the
six month period. At the election of the Employee, which election is to be made
within 30 days of Employee's termination, such payments shall be made in a lump
sum or paid monthly during the remaining term of this Agreement following the
Employee's termination, and shall be payable, in the event of the Employee's
death before full payment is made, to the Employee's surviving spouse, if any,
and otherwise to his
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estate. In the event that no election is made, payment to the Employee will be
made [in a lump sum] on a monthly basis during the remaining term of this
Agreement.
(2) In the event that the Employee, on the one hand, and the
Company and the Bank, on the other hand, jointly determine and agree that the
total parachute payments receivable under clauses (i) and (ii) of Section
11(a)(1) hereof exceed the Maximum Amount, notwithstanding the payment procedure
set forth in Section 11(a)(1) hereof, the Employee shall determine which and how
much, if any, of the parachute payments to which he is entitled shall be
eliminated or reduced so that the total parachute payments to be received by the
Employee do not exceed the Maximum Amount. If the Employee does not make his
determination within 10 business days after receiving a written request from the
Company and the Bank, the Company and/or the Bank may make such determination
and shall notify the Employee promptly thereof. Within five business days of the
earlier of receipt of the Employee's determination pursuant to this paragraph or
the determination by the Company and/or the Bank in lieu of a determination by
the Employee, the Company and/or the Bank shall pay to or distribute to or for
the benefit of the Employee such amounts as are then due the Employee under this
Agreement.
(3) As a result of uncertainty in application of Section 280G of
the Code at the time of payment hereunder, it is possible that such payments
will have been made by the Company and/or the Bank which should not have been
made ("Overpayment") or that additional payments will not have been made by the
Company and/or the Bank which should have been made ("Underpayment"), in each
case, consistent with the calculations required to be made under Section
11(a)(1) hereof. In the event that the Employee, based upon the assertion by the
Internal Revenue Service against the Employee of a deficiency which the Employee
believes has a high probability of success, determines that an Overpayment has
been made, any such Overpayment paid or distributed by the Company and/or the
Bank to or for the benefit of Employee shall be treated for all purposes as a
loan ab initio which the Employee shall repay to the Company and/or the Bank
together with interest at the applicable federal rate provided for in Section
7872(f)(2)(B) of the Code; provided, however, that no such loan shall be deemed
to have been made and no amount shall be payable by the Employee to the Company
and/or the Bank if and to the extent such deemed loan and payment would not
either reduce the amount on which the Employee is subject to tax under Section 1
and Section 4999 of the Code or generate a refund of such taxes. In the event
that the Employee and the Company and/or the Bank determine, based upon
controlling precedent or other substantial authority, that an Underpayment has
occurred, any such Underpayment shall be promptly paid by the Company and/or the
Bank to or for the benefit of the Employee together with interest at the
applicable federal rate provided for in Section 7872(f)(2)(B) of the Code.
(4) The term "Change in Control" shall mean any one of the
following events: (i) the acquisition of ownership, holding or power to vote
more than 25% of the Bank's or the Company's voting stock, (ii) the acquisition
of the ability to control the election of a majority of the Bank's or the
Company's directors, (iii) the acquisition of a controlling influence over the
management or policies of the Bank or the Company by any person or by persons
acting as a "group" (within the meaning of Section 13(d) of the Securities
Exchange Act of 1934, as amended) (except in the case of (i), (ii) and (iii)
hereof, ownership or control of the Bank by the Company itself shall not
constitute a "change in control"), or (iv) during any period of two consecutive
years, individuals who at the beginning of such period constitute the Board of
Directors of the Company or the Bank (the "Existing Board") (the "Continuing
Directors") cease for any reason to constitute at least a majority thereof,
provided that any individual whose election or nomination for election as a
member of the Existing Board was approved by a vote of at least a majority of
the Continuing Directors then in office shall be considered a Continuing
Director. For purposes of this subparagraph only, the term "person" refers to an
individual or a corporation, partnership, trust, association, joint venture,
pool, syndicate, sole proprietorship, unincorporated organization or any other
form of entity not specifically listed herein. The discussion of the Continuing
Directors as to whether a Change in Control has occurred shall be conclusive and
binding.
(b) Change in Control; Voluntary Termination.
(1) Notwithstanding any other provision of this Agreement to the
contrary, but subject to Section 11(a)(2) hereof, the Employee may voluntarily
terminate his employment under this Agreement within 24
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months following a Change in Control of the Bank or the Company, as defined in
paragraph (a)(4) of this Section 11, and the Employee shall thereupon be
entitled to receive the payment described in Section 11(a) of this Agreement
upon the occurrence of any of the following events, or within 90 days
thereafter, which has not been consented to in advance by the Employee in
writing: (i) the requirement that the Employee move his personal residence, or
perform his principal executive functions, more than 50 miles from his primary
office as of the date of the Change in Control; (ii) a material reduction in the
Employee's base compensation as in effect on the date of the Change in Control
or as the same may be changed by mutual agreement from time to time; (iii) the
failure by the Company and/or the Bank to continue to provide the Employee with
compensation and benefits provided for under this Agreement, as the same may be
increased from time to time, or with benefits substantially similar to those
provided to him under any employee benefit plans in which the Employee is a
participant at the time of the Change in Control, or the taking of any action
which would directly or indirectly reduce any of such benefits or deprive the
Employee of any material fringe benefit enjoyed by him at the time of the Change
in Control; (iv) the assignment to the Employee of duties and responsibilities
materially different from those normally associated with his position as
referenced at Section 1; (v) a failure to elect or reelect the Employee to the
Board of Directors of the Company or the Bank, if the Employee is serving on the
Board on the date of the Change in Control and the Company and/or the Bank is a
surviving corporation in the transaction which results in the Change in Control;
(vi) a material diminution or reduction in the Employee's responsibilities or
authority (including reporting responsibilities) in connection with his
employment; or (vii) a material reduction in the secretarial or other
administrative support of the Employee. Said sum shall be paid in lieu of the
payment of any benefit under Section 9 hereof.
(2) Notwithstanding any other provision of this Agreement to the
contrary, but subject to Section 11(a)(2) hereof, the Employee may voluntarily
terminate his employment under this Agreement following a Change in Control of
the Bank or the Company, as defined in paragraph (a)(4) of this Section 11, and
the Employee shall thereupon be entitled to receive the following payments: (i)
within 12 months following a Change in Control of the Bank or the Company, the
Employee shall be entitled to receive the salary provided pursuant to Section 2
hereof for an additional 12-month period; (ii) after 12 months but within 24
months following a Change in Control of the Bank or the Company, the Employee
shall be entitled to receive the salary provided pursuant to Section 2 hereof
for an additional 24-month period; and (iii) after 24 months but within 36
months following a Change in Control of the Bank or the Company, the Employee
shall be entitled to receive the payments described in Section 11(a) of this
Agreement. At the election of the Employee, which election is to be made within
30 days of the Employee's voluntary termination, such payments shall be made in
a lump sum or paid monthly. Said sum shall be paid in lieu of the payment of any
benefit under Section 9 hereof.
(c) Compliance with 12 U.S.C. Section 1828(k). The obligations of
the Company and the Bank to make payments to the Employee pursuant to this
Agreement, or otherwise, are subject to compliance with Section 18(k) of the
FDIA (12 U.S.C. 1828(k)) and any regulations promulgated thereunder.
12. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
accordance with the rules of the American Arbitration Association then in
effect. Judgment may be entered on the arbitration award in any court having
jurisdiction; provided, however, that until the Expiration Date the Employee
shall be entitled to seek specific performance of his right to be paid during
the pendency of any dispute or controversy arising under or in connection with
this Agreement. Any arbitration proceeding shall be governed by and subject to
Alabama arbitration law.
13. Federal Income Tax Withholding. The Company and/or the Bank may
withhold all Federal and State income or other taxes from any benefit payable
under this Agreement as shall be required pursuant to any law or government
regulation or ruling.
14. Successors and Assigns.
(a) Company and Bank. This Agreement shall not be assignable by the
Company or the Bank, provided that this Agreement shall inure to the benefit of
and be binding upon any corporate or other
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successor of the Company or the Bank which shall acquire, directly or
indirectly, by merger, consolidation, purchase or otherwise, all or
substantially all of the assets or stock of the Company or Bank.
(b) Employee. Since the Company and the Bank are contracting for the
unique and personal skills of the Employee, the Employee shall be precluded from
assigning or delegating his rights or duties hereunder without first obtaining
the written consent of the Company and the Bank; provided, however, that nothing
in this paragraph shall preclude (i) the Employee from designating a beneficiary
to receive any benefit payable hereunder upon his death, or (ii) the executors,
administrators, or other legal representatives of the Employee or his estate
from assigning any rights hereunder to the person or persons entitled thereunto.
(c) Attachment. 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 exclusion, attachment, levy or similar process or assignment by operation of
law, and any attempt, voluntary or involuntary, to effect any such action shall
be null, void and of no effect.
15. Amendments. No amendments or additions to this Agreement shall be
binding unless made in writing and signed by all of the parties, except as
herein otherwise specifically provided.
16. Applicable Law. Except to the extent preempted by Federal law, the
laws of the State of Alabama shall govern this Agreement in all respects,
whether as to its validity, construction, capacity, performance or otherwise.
17. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
18. Entire Agreement. This Agreement, together with any understanding
or modifications thereof as agreed to in writing by the parties, shall
constitute the entire agreement between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
ATTEST: PINNACLE BANCSHARES, INC.
By:
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Secretary
ATTEST: PINNACLE BANK
By:
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WITNESS:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.