This Executive Employment Agreement involves
Title: THIRD AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
Governing Law: Tennessee Date: 8/29/2016
Law Firm: Waller Lansden
THIRD AMENDED AND RESTATED
EXECUTIVE EMPLOYMENT AGREEMENT
THIS THIRD AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT (this “ Agreement ”) made and entered into on this 31 st day of May, 2016 (the “ Effective Date ”), between CapStar Financial Holdings , a Tennessee corporation established to be a bank holding company, headquartered in Nashville, Davidson County, Tennessee, (the “ Company ”) and CapStar Bank, a Tennessee banking corporation headquartered in Nashville, Davidson County, Tennessee, (the “ Bank ”) (the Company and Bank together referred to herein as “ CapStar ”) and Rob Anderson , hereinafter referred to as “ Executive .”
W I T N E S S E T H
WHEREAS, Executive has been employed by Bank as its Chief Financial Officer since December 17, 2012 and has been CapStar’s Chief Financial Officer and Chief Administrative Officer since February 6, 2016; and
WHEREAS, Executive and Bank previously entered into an Amended and Restated Executive Employment Agreement on March 11, 2015 (the “ Prior Agreement ”) regarding the rendering of services for the periods set forth in the Prior Agreement; and
WHEREAS, the parties desires to amend and restate the Prior Agreement to provide for the continued employment of Executive by the Company and the Bank to render services to it for the periods and upon the terms and conditions provided for in this Agreement; and
WHEREAS, Executive wishes to serve in the employ of CapStar for the period and upon the terms and conditions provided for in this Agreement.
NOW, THEREFORE, for the reasons set forth above and in consideration for the mutual promises and agreements set forth herein, CapStar and Executive agree as follows:
1. Amendment of Prior Agreement . The parties hereby amend and restate the Prior Agreement in its entirety, and hereby substitute this Agreement for the Prior Agreement.
2. Employment . Subject to continued approval of the Tennessee Department of Financial Institutions and other bank regulatory agencies having jurisdiction over the operations of Bank, CapStar hereby agrees that effective on the Effective Date, Executive shall be employed by as the Chief Financial Officer and Chief Administrative Officer of CapStar pursuant to the terms of this Agreement. Executive agrees to devote his best efforts and his full-time employment to CapStar’s business, operations and strategic planning and perform such other related activities and duties as the board of directors of the Company (the “ Board ”) and the board of directors of the Bank may, from time to time, determine and assign to Executive. Executive’s services and decisions shall be subject to the review, modification and control of the Board. Service on the Board and/or the board of directors of the Bank by Executive shall be included in the scope of Executive’s employment if he so serves.
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3. Compensation . During the term of Executive’s employment hereunder:
(a) Salary . For the services provided for herein, CapStar shall pay to Executive, and Executive shall accept from CapStar, a base salary of Three Hundred Twenty Five Thousand and No/100 Dollars ($325,000.00) per annum (Executive’s “ Base Salary ”), subject to any and all withholdings and deductions required by law, payable in accordance with the customary payroll practices of CapStar. During the term of this Agreement, Executive’s Base Salary shall be reviewed from time to time by the Board, and may be increased, but not decreased below the Base Salary, from time to time by the Board, based upon such factors as it may establish from time to time.
(b) Benefits . CapStar shall provide to Executive, consistent with the terms and conditions of the respective plans, and pay the cost of, such employee benefits as are provided to Executive Officers of CapStar generally under benefit plans adopted by CapStar from time to time (such benefit plans of CapStar in effect from time to time, “ Employee Benefit Plans ”). The Employee Benefit Plans may include vacation days, sick days or other types of paid or unpaid leave, insurance programs, pension plans, profit sharing plans, bonus plans, stock option plans, restricted stock plans or other stock-based incentive plans, and other employee benefit plans. Provision of such benefit plans by CapStar is within the sole discretion of CapStar, and any such benefits may be amended, modified or discontinued at any time by CapStar.
(c) Reimbursements . Upon timely and well-documented requests by Executive submitted within one month from the payment of such expenses by Executive, CapStar shall reimburse Executive for Executive’s costs and expenses incurred in connection with the performance of Executive’s duties or otherwise for the benefit of CapStar, specifically including any business expenses incurred with the prior approval of the Board. Such reimbursements shall be made in accordance with the policies established by CapStar from time to time, recognizing that CapStar may have different reimbursement policies for executive officers, and likewise may have different reimbursement policies for Executive as Chief Financial Officer of CapStar. Such reimbursements may be approved by CapStar on a one-time basis for a particular expenditure, or on an ongoing basis, and may include automobile expense reimbursements, among others; provided , that such ongoing approvals shall be subject to change from time to time.
4. Term of Employment; Renewal . The initial extended term of Executive’s employment pursuant to this Agreement shall commence on the Effective Date and shall end on May 31, 2017 (the “ Renewal Term ”). The Term of Executive’s employment pursuant to this Agreement may be renewed and the term thereof extended by one (1) additional year (each, an “ Extended Term ”) at the end of the Renewal Term and at the end of each Extended Term, by mutual agreement of the parties, which shall be evidenced by each party giving notice of renewal to the other party at least ninety (90) days prior to the expiration of the then-current Extended Term. The initial term, Renewal Term and all Extended Terms are collectively referred to herein as the “ Term .”
5. Termination of Employment .
(a) Termination By CapStar . Notwithstanding any of the foregoing provisions in this Agreement, CapStar, by action of the Board, may terminate or elect not to extend the employment of Executive hereunder without notice at any time, for Cause or without Cause. For purposes of this Agreement, “Cause” includes, but is not limited to: (i) any material breach of the terms of this Agreement which negatively impacts CapStar; (ii) personal dishonesty, fraud, disloyalty, or theft; (iii) disclosure of CapStar’s confidential information except in the course of performing his duties while employed by CapStar; (iv) willful illegal or disruptive conduct which impairs the reputation, goodwill or business position of CapStar; (v) breach of fiduciary duty involving personal profit; (vi) any order or request for removal of Executive by any regulatory authority having jurisdiction over CapStar; or (vii) Executive’s
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disability, as defined in any disability insurance policy of CapStar with benefits payable to Executive, or if there is no such disability insurance policy, then as defined in CapStar’s established policy applicable to executive officers (“ Disability ”). Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of a majority of the members of the Board at a duly constituted meeting of the Board, finding that in the good faith opinion of the Board, Executive was guilty of conduct justifying Termination for Cause and specifying the reasons therefor. Executive shall have the right to appear and defend himself at any meeting of the Board at which such a resolution is under consideration.
(b) For Cause; Nonrenewal . In the event of termination of Executive by CapStar for Cause or election by CapStar or Executive not to renew or extend the Term, Executive shall be entitled to receive only the compensation that has been earned and accrued as of the date of termination but no other monies or benefits except that: (A) in the case of Executive’s Disability, if no disability plan or disability insurance policy is in place, Executive shall receive fifty per cent (50%) of his Base Salary for a period not to exceed twenty four (24) weeks following the date of termination; and (B) subject to Section 13 hereof, Executive shall be entitled to receive any extended benefits provided to all employees of CapStar or required by law, such as, for example, COBRA health insurance coverage.
(c) Without Cause . In the event that: (A) CapStar terminates executive’s employment hereunder without cause; or (B) CapStar engages in conduct that constitutes Good Reason, Executive shall be entitled (i) to resign from his employment with CapStar, (ii) to continue to receive his Base Salary, payable as before such termination, for a period of two (2) years after the effective date of such termination, (iii) subject to Section 13 hereof, be provided, for a period of twenty-four (24) months after such termination, with life, medical, dental and disability coverage substantially identical to the coverage maintained by the CapStar for Executive prior to Executive’s severance, and (iv) to receive all benefits and reimbursements accrued and payable to Executive at the time of termination of his employment hereunder, including any stock or payments to which Executive is entitled under, and subject to the terms of, all incentive plans in which Executive participates (including and subject to the terms of each and any individual grant or award agreement), including stock option plans, restricted stock plans, performance share plans, and any other stock-based or cash-based incentive plans and the individual grant or award agreements under such plans (collectively, Executive’s “ Severance Pay ”); provided , however , that if CapStar offers and Executive voluntarily accepts terms of employment that would otherwise constitute Good Reason, then Executive shall be deemed to have waived his right to resign and receive Severance Pay. Upon termination of Executive’s employment hereunder for any reason (other than by CapStar for Cause), whether voluntarily by Executive or by termination by CapStar without Cause, by non-renewal, or otherwise, Executive shall continue to be bound by the provisions contained in Sections 8, 9, 10 and 11 hereof. In the event Executive’s employment hereunder is terminated by CapStar for Cause, Executive shall not be bound by the covenant not to compete set forth in Section 9 hereof.
(d) By Executive . Notwithstanding any of the foregoing provisions in this Agreement, Executive may terminate or elect not to extend his employment hereunder without notice at any time. In the event of a termination or election not to extend the Term by Executive for any reason other than Good Reason, including the death or Disability of Executive, Executive shall be entitled to receive only the compensation that has been earned and benefits and reimbursements that have accrued as of the date of termination and any extended benefits required by law, but no other monies or benefits other than continuing benefits under any retirement plan, disability insurance policy, or life insurance policy payable by virtue of the retirement, death or disability of Executive having occurred prior to such termination of employment. Upon termination of Executive’s employment by Executive for whatever reason, Executive shall continue to be bound by the provisions set forth in Sections 8, 9, 10 and 11 hereof.
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6. Change in Control . Capitalized terms used in this Section 6 or in Section 7 but not otherwise defined in this Section 6 or in Section 7 shall have the meanings ascribed to them in Section 12.
(a) Entitlement to Benefits upon Termination . Subject to Section 13 hereof, if during the Protection Period a Qualifying Termination of Executive’s employment occurs, CapStar shall pay to Executive the Change in Control benefits described in this Section 6. Change in Control benefits shall not be payable if Executive’s employment is terminated (i) for Cause, (ii) by Executive voluntarily without Good Reason or (iii) by reason of Disability. In addition, the Change in Control benefits shall not be payable if Executive’s employment is terminated for any or no reason prior to or following the Protection Period.
(b) Change in Control Payment and Benefits . Executive shall be entitled to receive a cash payment equal to two (2) times Executive’s Base Salary in effect immediately prior to the date of termination (the “ Change in Control Payment ”), which shall be paid in twenty-four (24) equal monthly payments commencing on the first business day of the first month following the date of termination. Subject to Section 13 hereof, if a Qualifying Termination of Executive’s employment occurs during the Protection Period, CapStar shall maintain for the remaining duration of the Protection Period Executive’s health insurance coverage under any applicable Employee Benefit Plans, including any insurance policy held by CapStar, and pay CapStar’s portion of such coverage, with the intent of the parties being that Executive shall continue to receive such health insurance coverage for a period of twenty-four (24) months following a Change in Control. Subject to Section 13 hereof, Executive shall have the right to continue COBRA health insurance coverage at the end of the Protection Period.
7. Compliance with Section 409A .
(a) Executive shall not have any right to make any election regarding the time or form of any payment due under this Agreement.
(b) A payment of any amount or benefit hereunder that is (i) subject to Code Section 409A, and (ii) to be made because of a termination of employment shall not be made unless such termination is also a “separation from service” within the meaning of Code Section 409A and the regulations promulgated thereunder and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment,” “resignation” or like terms shall mean “separation from service” within the meaning of Code Section 409A. Notwithstanding any provision of this Agreement to the contrary, if at the time of Executive’s “separation from service” Executive is a “specified employee” (within the meaning of Code Section 409A), then to the extent that any amount to which Executive is entitled in connection with his separation from service is subject to Code Section 409A, payments of such amount