Exhibit 10.13
EMPLOYMENT
AGREEMENT
THIS AGREEMENT is
made as of the 2 nd day of January, 2009, by and
among Citizens National Bank (the “Employer”), CNB
Bancorp, Inc., a bank holding company incorporated under the laws
of the Commonwealth of Virginia (“CNB”) and Jeffery H.
Noblin , a resident of the Commonwealth of Virginia (the
“Executive”).
RECITALS:
The Employer desires to employ the
Executive as its President and Chief Executive Officer and the
Executive desires to accept such employment.
In consideration of the mutual
agreements hereinafter set forth, the parties hereby agree as
follows:
1. Definitions
. Whenever used in this
Agreement, the following terms and their variant forms shall have
the meaning set forth below:
1.1 “ Agreement
” shall mean this
Agreement and any exhibits incorporated herein together with any
amendments hereto made in the manner described in this
Agreement.
1.2 “ Affiliate
” shall mean any
business entity which controls the Employer, is controlled by or is
under common control with the Employer.
1.3 “ Area
” shall mean the
geographic area within a fifteen (15) mile radius of the town
limits of Windsor, Virginia, the Employer’s primary location.
It is the express intent of the parties that the Area as defined
herein is the area where the Executive performs services on behalf
of the Employer under this Agreement.
1.4 “ Business of the Employer
” shall mean the business conducted by the Employer,
which is the business of commercial banking.
1.5 “ Cause
” shall
mean:
1.5.1 With respect to termination by
the Employer:
(a) A material breach of the terms
of this Agreement by the Executive, including, without limitation,
failure by the Executive to perform his duties and responsibilities
in the manner and to the extent required under this Agreement,
which remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the
Executive by the Employer. Such notice shall (i) specifically
identify the duties that the Board of Directors of either the
Employer or CNB believes the Executive has failed to perform, and
(ii) state the facts upon which such Board of Directors made
such determination;
(b) Conduct by the Executive that
amounts to fraud, dishonesty or willful misconduct in the
performance of his duties and responsibilities
hereunder;
(c) Arrest for, charged in relation
to (by criminal information, indictment or otherwise), or
conviction of the Executive during the Term of this Agreement of a
crime involving breach of trust or moral turpitude;
(d) Conduct by the Executive that
amounts to gross and willful insubordination or inattention to his
duties and responsibilities hereunder; or
(e) Conduct by the Executive that
results in his removal from his position as an officer or executive
of the Employer pursuant to a written order by any regulatory
agency with authority or jurisdiction over the Employer.
1.5.2 With respect to termination by
the Executive, a material diminution in the powers,
responsibilities or duties of the Executive hereunder or a material
breach of the terms of this Agreement by the Employer, which
remains uncured after the expiration of thirty (30) days
following the delivery of written notice of such breach to the
Employer by the Executive.
1.6 “ Change of
Control ” means
any one of the following events:
(a) the acquisition by any person or
persons acting in concert of the then outstanding voting securities
of either CNB or the Employer, if, after the transaction, the
acquiring person(s) owns, controls or holds with power to vote
twenty-five percent (25%) or more of any class of voting
securities of either CNB or the Employer, as the case may
be;
(b) within any twelve
(12) month period (beginning on or after the Effective Date)
the persons who were directors of either CNB or the Employer
immediately before the beginning of such twelve (12) month
period (the “Incumbent Directors”) shall cease to
constitute at least a majority of such board of directors; provided
that any director who was not a director as of the beginning of
such twelve (12) month period shall be deemed to be an
Incumbent Director if that director were elected to such board of
directors by, or on the recommendation of or with the approval of,
at least two-thirds (2/3) of the directors who then qualified
as Incumbent Directors; and provided further that no director whose
initial assumption of office is in connection with an actual or
threatened election contest relating to the election of directors
shall be deemed to be an Incumbent Director;
(c) a reorganization, merger, share
exchange combination, or consolidation, with respect to which
persons who were the stockholders of CNB or the Employer, as the
case may be, immediately prior to such reorganization, merger,
share exchange combination, or consolidation do not, immediately
thereafter, own more than fifty percent (50%) of the combined
voting power entitled to vote in the election of directors of the
reorganized, merged, combined or consolidated Employer’s then
outstanding voting securities; or
(d) the sale, transfer or assignment
of twenty-five percent (25%) or more of the voting stock of
CNB or all or substantially all of the assets of CNB to a party
other than the Employer or an affiliate of the Employer, or the
Employer liquidates or dissolves CNB.
1.7 “ Confidential
Information ” means data and information relating to the
business of CNB or the Employer (which does not rise to the status
of a Trade Secret) which is or has been disclosed to the Executive
or of which the Executive became aware as a consequence of or
through the Executive’s relationship to CNB or the Employer
and which has value to CNB or the Employer and is not generally
known to its competitors. Confidential Information shall not
include any data or information that has been voluntarily disclosed
to the public by CNB or the Employer (except where such public
disclosure has been made by the Executive without authorization) or
that has been independently developed and disclosed by others, or
that otherwise enters the public domain through lawful
means.
1.8 “ Disability
” shall mean the
inability of the Executive to perform each of his material duties
under this Agreement for the duration of the short-term disability
period under the Employer’s policy then in effect as
certified by a physician chosen by the Employer and reasonably
acceptable to the Executive.
1.9 “ Effective Date
” shall mean
May 15, 2008.
1.10 “ Employer
Information ” means Confidential Information and Trade
Secrets.
1.11 “ Initial Term
” shall mean that
period of time commencing on the Effective Date and running until
the earlier of the close of business on the last business day
immediately preceding the first anniversary of the Effective Date
or any earlier termination of employment of the Executive under
this Agreement as provided for in Section 3.
1.12 “ Term
” shall mean the
Initial Term and all subsequent renewal periods.
1.13 “ Trade Secrets
” means Employer
information including, but not limited to, technical or non
technical data, formulas, patterns, compilations, programs,
devices, methods, techniques, drawings, processes, financial data,
financial plans, product plans or lists of actual or potential
customers or suppliers which:
(a) derives economic value, actual
or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use; and
(b) is the subject of efforts that
are reasonable under the circumstances to maintain its
secrecy.
2. Duties .
2.1 Position .
The Executive is employed as
President and Chief Executive Officer of the Employer and, subject
to the direction of the Board of Directors of CNB or the Employer
or its designee(s), shall perform and discharge well and faithfully
the duties which may be assigned to him from time to time by CNB or
the Employer in connection with the conduct of its business. The
current duties and responsibilities of the Executive are set forth
on Exhibit A attached hereto, which may be changed at
any time by the Employer.
2.2 Full-Time Status
. In addition to the
duties and responsibilities specifically assigned to the Executive
pursuant to Section 2.1 hereof, the Executive
shall:
(a) devote substantially all of his
time, energy and skill during regular business hours to the
performance of the duties of his employment (reasonable vacations
and reasonable absences due to illness excepted) and faithfully and
industriously perform such duties;
(b) diligently follow and implement
all reasonable and lawful management policies and decisions
communicated to him by the Board of Directors of either CNB or the
Employer; and
(c) timely prepare and forward to
the Board of Directors of either CNB or the Employer all reports
and accountings as may be requested of the Executive.
2.3 Permitted Activities
. The Executive shall
devote his entire business time, attention and energies to the
Business of the Employer and shall not during the Term be engaged
(whether or not during normal business hours) in any other business
or professional activity, whether or not such activity is pursued
for gain, profit or other pecuniary advantage; but this shall not
be construed as preventing the Executive from:
(a) investing his personal assets in
businesses which (subject to clause (b) below) are not in
competition with the Business of the Employer and which will not
require any services on the part of the Executive in their
operation or affairs and in which his participation is solely that
of an investor;
(b) purchasing securities in any
corporation, the securities of which are regularly traded provided
that such purchase shall not result in him collectively owning
beneficially at any time five percent (5%) or more of the
equity securities of any business in competition with the Business
of the Employer; and
(c) participating in civic and
professional affairs and organizations and conferences, preparing
or publishing papers or books or teaching so long as the Board of
Directors of either CNB or the Employer approves in writing of such
activities prior to the Executive’s engaging in
them.
3. Term and Termination
.
3.1 Term .
This Agreement shall remain in
effect for the Term. While this Agreement remains in effect, at the
end of the Initial Term, the Agreement will be renewable for one
(1) year periods thereafter, unless either the Executive or
the Employer provides sixty (60) days prior written notice of
their intent to terminate this Agreement.
3.2 Termination
. During the Term, the
employment of the Executive under this Agreement may be terminated
only as follows:
3.2.1 By the Employer:
(a) For Cause, upon a vote of at
least fifty-one percent (51%) of the Employer’s Board of
Directors, and upon written notice to the Executive pursuant to
Section 1.5.1 hereof, in which event the Employer shall have
no further obligation to the Executive except for payment of any
Base Salary due and owing under Section 4.1 on the effective
date of termination and reimbursement under Section 4.5 of
expenses incurred as of the effective date of
termination;
(b) Without Cause at any time,
provided that the Employer shall give the Executive thirty
(30) days’ prior written notice of its intent to
terminate, in which event, and upon execution of a full and final
release from Executive, the Employer shall be required to continue
to meet its obligation to the Executive under Section 4.1 for
a period of ninety (90) days from the date of termination of
this Agreement. Non-renewal of this Agreement, however, does not
constitute termination without cause; or
(c) Upon the Disability of Executive
at any time, provided that the Employer shall give the Executive
thirty (30) days’ prior written notice of its intent to
terminate, in which event, and upon execution of a full and final
release from Executive, the Employer shall be required to continue
to meet its obligation to the Executive under Section 4.1 for
six (6) months following the termination or until the
Executive begins receiving payments under the Employer’s
long-term disability policy, whichever occurs first.
(d) In the event that the primary
regulator for the Employer or CNB raises an objection to the
Executive’s service as President of either the Employer or
CNB pursuant to which the regulator requires the Executive’s
removal from his position as President, in which event the Employer
shall have no further obligation to the Executive except for
payment of any Base Salary due and owing under Section 4.1 on
the effective date of termination and reimbursement under
Section 4.5 of expenses incurred as of the effective date of
termination.
3.2.2 At any time upon mutual,
written agreement of the parties, in which event the Employer shall
have no further obligation to the Executive except for payment of
any Base Salary due and owing under Section 4.1 on the
effective date of termination and reimbursement under
Section 4.5 of expenses incurred as of the effective date of
termination.
3.2.3 Notwithstanding anything in
this Agreement to the contrary, the Term shall end automatically
upon the Executive’s death, in which event the Employer shall
have no further obligation to the Executive’s estate except
for payment of any Base Salary due and owing under Section 4.1
on the effective date of termination and reimbursement under
Section 4.5 of expenses incurred as of the effective date of
termination.
3.3 Change of Control
. If there shall occur a
change of control of CNB or the Employer (“Change of
Control”), the Executive may be assigned such other duties or
responsibilities as would be reasonably equivalent under the
circumstances and acceptable to the Executive in his reasonable
discretion. During the first six (6) months following the
effective date of a Change of Control but not after, Executive may
be “terminated without cause due to a Change of
Control.” Alternatively, if Executive is retained but not
given reasonably equivalent duties and responsibilities, he may
resign wi
