a4q21ex-1013






                                                                                                                                                              Exhibit 10.13  EMPLOYMENT AGREEMENT    THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this 28th  day of April, 2021 (the "Effective Date") by and among FB FINANCIAL CORPORATION  ("Company"), FIRSTBANK , a Tennessee bank ("Bank"), a wholly owned subsidiary of the  Company, and Wilburn ("Wib") J. Evans ("Executive"). Company, Bank, and Executive are  sometimes referred to herein collectively as the"Parties," and each is sometimes referred to herein  individually as a "Party."    BACKGROUND    WHEREAS, Executive is currently engaged as an executive officer of the Company and as  the President ofFirstBank Ventures, a division of Bank; and    WHEREAS, the Parties desire to memorialize the terms and conditions of Executive's  employment.    NOW, THEREFORE, in consideration of the payments, consents, and acknowledgements  described below, in consideration of Executive's employment with Company and Bank, and in  consideration of other good and valuable consideration, the receipt and sufficiency of all of which  is hereby acknowledged, the Parties agree as follows:    1. Definitions. The following capitalized terms used in this Agreement shall have the  meanings assigned to them below, which definitions shall apply to both the singular and the plural  forms of such terms:    (a) "Board of Directors" means, collectively, the board of directors of  Company and the board of directors of Bank and, where appropriate, any committee or other  designee thereof.    (b) "Beneficial Owner" has the meaning given such term in Rule 13d-3 of the  General Rules and Regulations promulgated under the Securities Exchange Act of 1934.    (c) "Cause" means, in the context of the termination of this Agreement by  Employer, a good faith determination by the Chief Executive Officer of Company that is agreed to  by a majority of the members of the Compensation Committee of the Board of Directors of  Company, that any of the following has occurred:    (i) conduct by Executive that amounts to willful misconduct, gross  neglect, or a material failure to perform Executive's duties and responsibilities hereunder,  including prolonged absences without the consent of the Chief Executive Officer of  Company unless otherwise excused by law or under Bank's leave policies; provided that  the nature of such conduct shall be set forth in a written notice to Executive who shall have  30 business days following delivery of such notice to cure such alleged conduct, provided  that such conduct is, in the reasonable discretion of the Chief Executive Officer of  Company, susceptible to a cure;    (ii) any willful violation of any material law, rule, or regulation applicable  to banks or the banking industry generally (including but not limited to the regulations of  the Board of Governors of the Federal Reserve, the FDIC, the Tennessee Department of  Financial Institutions, or any other applicable regulatory authority);    (iii) the exhibition by Executive of a standard of behavior within the scope  of or related to Executive's employment that is in violation of any written policy, board  committee charter, or code of ethics or business conduct (or similar code) of Company  or Bank to  





 






2          Executive is subject; provided that the nature of such conduct shall be set forth with  reasonable particularity in a written notice to Executive who shall have 30 business days  following delivery of such notice to cure such alleged conduct, provided that such conduct  is, in the reasonable discretion of the Chief Executive Officer of Company, susceptible to a  cure;  (iv) any act of fraud, misappropriation, or embezzlement by Executive,  whether or not such act was committed in connection with the business of Company and/or  Bank;  (v) a material breach of this Agreement, including, without limitation, a  breach of Section 7 hereof; provided that the nature of such breach shall be set forth with  reasonable particularity in a written notice to Executive who shall have 30 business days  following delivery of such notice to cure such breach, provided that such breach is, in the  reasonable discretion of the Chief Executive Officer of Company, susceptible to a cure;    (vi) Executive's conviction of, or Executive's pleading guilty or nolo  contendere to with respect to (a) a felony or a crime involving moral turpitude (including  pleading guilty or nolo contendere to a felony or lesser charge which results from plea  bargaining), whether or not such felony, crime, or lesser offense is connected with the  business of Company and/or Bank, or (b) any crime in connection with the business of  Company or Bank.    (d) "Change in Control of' means and includes any one of following events:    (i) any Person becomes a Beneficial Owner, directly or indirectly, of 50% or  more of the voting power of the then-outstanding securities of Company eligible to vote for the election  of directors ("Company Voting Securities");provided, however, that for purposes of this subsection  (i), the following acquisitions of Company Voting Securities shall not constitute a Change in Control:  (A) an acquisition by a Principal Shareholder, (B) an acquisition directly or indirectly from the  Company, including an acquisition by or through a broker, underwriter, or financial institution  acquiring such securities as part of a firm commitment or similar underwriting or distribution  process, (C) an acquisition by Company or Bank,  (D) an acquisition by any employee benefit plan (or related trust) sponsored or maintained by  Company or Bank, or (E) an acquisition pursuant to a Non-Qualifying Transaction (as defined in  subsection (iii) below); or    (ii) during any consecutive 12-month period, individuals who, at the beginning of  such period, constitute Company's Board of Directors (the "Incumbent Directors") cease for  any reason to constitute at least a majority of such Board of Directors, provided that any person  becoming a director after the beginning of such 12-month period and whose election or  nomination for election was approved by a vote of at least a majority of the Incumbent Directors  then on the Board of Directors shall be an Incumbent Director; provided, however, that no  individual initially elected or nominated  as a director as a result of an actual or threatened  election contest with respect to the election or removal of directors ("Election Contest") or other  actual or threatened solicitation of proxies or consents by or on behalf of any Person other than  the Board of Directors ("Proxy Contest"), including by reason of any agreement intended to  avoid or settle any Election Contest or Proxy Contest, shall be deemed an Incumbent Director; or    (iii) the consummation of a reorganization, merger, consolidation, statutory  share exchange, or similar form of corporate transaction involving Company or Bank, the sale or other  disposition of all or substantially all of Company's assets, or the acquisition of assets or stock of another  corporation or other entity (each, a "Transaction"), unless immediately following such Transaction:  (A) all or substantially all of the individuals and entities who were the Beneficial Owners, respectively,  of the outstanding Company Voting Securities immediately prior to such Transaction beneficially own,  directly or indirectly, more than 50% of the voting power of the then-outstanding shares of voting  securities of the entity resulting from such Transaction (including, without limitation, an entity which  as a result of such Transaction owns Company  





 






3              or all or substantially all of Company's assets or stock either directly or through one or more subsidiaries,  the "Surviving Entity") in substantially the same proportions as their ownership, immediately prior to  such Transaction, of the outstanding Company Voting Securities, and (B) no person (other than (x)  Company or Bank, (y) the Surviving Entity or its ultimate parent entity, or (z) any employee benefit plan  (or related trust) sponsored or maintained by any of the foregoing) is the Beneficial Owner, directly or  indirectly, of 50% or more of the total common stock or 50% or more of the total voting power of the  outstanding voting securities eligible to elect directors of the Surviving Entity, and (C) at least a majority  of the members of the board of directors of the Surviving Entity were Incumbent Directors at the time of  the Board of Director's approval of the execution of the initial agreement providing for such Transaction  (any Transaction which satisfies all of the criteria specified in (A), (B), and (C) above shall be deemed  to be a "Non-Qualifying Transaction").        as  amended.    (e) "COBRA" means the Consolidated Omnibus Budget Reconciliation Act of  1985,    (f) "Code" means the Internal Revenue Code of 1986, as amended, and the rules  and  regulations promulgated thereunder.  (g) "Compensation Committee" means the compensation committee of the board  of directors of Company.  (h) "Competitive Services" means engaging in the business of commercial and  mortgage banking, including, without limitation, originating, underwriting, closing and selling loans,  receiving deposits, as well as the business of providing any other activities, products, or services of the  type routinely conducted, offered, or provided by Employer as of or during the two years immediately  prior to the Date of Termination. Notwithstanding the above, "Competitive Services" shall not include  engaging in the insurance business.  (i) "Confidential Information" means any and all data and information relating to  Employer, its activities, business, or clients that (i) is disclosed to Executive or of which Executive becomes  aware because ofExecutive's employment with Employer; (ii) has value to Employer; and (iii) is not generally  known outside of Employer. "Confidential Information" shall include, but is not limited to the following types  of information regarding, related to, or concerning Employer: trade secrets (as defined by the Tennessee  Uniform Trade Secrets Act); financial plans and data; management planning information; business  plans; operational methods; market studies; marketing plans or strategies; pricing information; product  development techniques or plans; customer lists; customer files, data, and financial information; details  of customer contracts; current and anticipated customer requirements; identifying and other information  pertaining to business referral sources; past, current, and planned research and development; computer  aided systems, software, strategies, and programs; business acquisition plans; management  organization and related information (including, without limitation, data and other information concerning  the compensation and benefits paid to officers, directors, employees, and management); personnel and  compensation policies; new personnel acquisition plans; and other similar information. "Confidential  Information" also includes combinations of information or materials which individually may be generally  known outside of Employer, but for which the nature, method, or procedure for combining such  information or materials is not generally known outside of Employer. In addition to data and information  relating to Employer, "Confidential Information" also includes any and all data and information relating  to or concerning a third party that otherwise meets the definition set forth above, that was provided or made  available to Employer by such third party, and that Employer has a duty or obligation to keep confidential.  This definition shall not limit any definition of "confidential information" or any equivalent term under  state or federal law. "Confidential Information" shall not include information that has become generally  available to the public by the act of one who has the right to disclose such information without violating  any right or privilege of Employer 





 






4          G)    "Date of Termination" means: (i) if Executive's employment is terminated  other than by reason of death or Disability, the date of delivery of the Notice of Termination, or any  later date specified in such Notice of Termination, or (ii) if Executive's employment is terminated  by reason of death or Disability, the Date of Termination will be the date of death or the Disability  Effective Date, as the case maybe.  (k) "Disability" means a condition for which benefits would be payable under  any long-term disability coverage (without regard to the application of any elimination period  requirement) then provided to Executive by Employer or, if no such coverage is then being  provided, the inability of the Executive to perform the essential functions of Executive's job with  Employer (as specified in this Agreement), with or without reasonable accommodation, for a period  of at least 180 consecutive days as certified by a physician chosen by Executive and reasonably  acceptable to the Employer. Notwithstanding the provisions in this Section l(k), Disability for  purposes of this Agreement must also be a disability within the meaning of Code Section  409A(a)(2)(A)(ii) and 409A(a)(2)(C) and Treas. Reg. Section 1.409A-3(a)(2).  (1) "Employer" means Company and Bank, collectively.    (m) "Excise Tax" means any excise tax imposed by Section 4999 of the Code.  (n) "FDIC' means the Federal Deposit Insurance Corporation.    (o) "Good Reason" shall mean, in the context of the termination of this  Agreement by  Executive:  (i) a material diminution in Executive's title, authority, duties, or  responsibilities which is not consented to by Executive in writing;  (ii) a material diminution in Executive's base compensation (which  includes Executive's Base Salary and target Annual Bonus opportunity) which is not  consented to by Executive in writing or made as part of across-the-board compensation  reductions affecting all or substantially all similarly-situated employees;  (iii) a change in the location of Executive's primary office such that  Executive is required to report regularly to an office located outside of a 50-mile radius from  the location of Executive's primary office as of the Effective Date, which change is not  consented to by Executive in writing; or  (iv) a material breach of the terms of this Agreement by Employer.    (p) "Notice of Termination" shall mean a written notice delivered by a Party in  connection with the termination of this Agreement which (i) indicates the specific termination  provision in this Agreement relied upon for such termination, (ii) to the extent applicable, sets forth  in reasonable detail the facts and circumstances claimed to provide a basis for termination under  the provision so indicated, and  (iii) specifies the Date of Termination.  (q) "Material Contact" means contact between Executive and a customer or  potential customer of Company or Bank (i) with whom or which Executive has or had substantive  dealings on behalf of Company or Bank; (ii) whose dealings with Company or Bank are or were  coordinated or supervised by Executive; (iii) about whom Executive obtains Confidential Information  in the ordinary course of business as a result of Executive's employment with Employer; or (iv) who  receives products or services of Company or Bank, the sale or provision of which directly results or  resulted in incentive compensation or commissions for Executive within the two years prior to the  Date of Termination.  (r) "Parachute Value" of a Payment means the present value as of the date of  the Change in Control of the portion of such Payment that constitutes a "parachute payment"  under Section 





 






5          280G(b)(2) of the Code, as determined by the Determination Firm (as defined in Section I0(b)) for  purposes of determining whether and to what extent the Excise Tax will apply to such Payment.  (s) "Payment' shall mean any benefit, payment, or distribution made or given  by Employer to or for the benefit of Executive (whether paid or payable or distributed or distributable  pursuant to the terms of this Agreement or otherwise).  (t) "Person" means any individual or any corporation, partnership, joint  venture, limited liability company, association, or other entity or enterprise.  (u) "Principal or Representative" means a principal, owner, partner,  shareholder, joint venturer, investor, member, trustee, director, officer, manager, employee, agent,  representative, or consultant.  (v) "Principal Shareholder" means James W. Ayers or his designee(s), and  shall include any entity that is directly or indirectly affiliated with the Principal Shareholder.  (w) "Protected Customer" means any Person to whom Company or Bank has  sold its products or services or actively solicited to sell its products or services, and with whom  Executive has had Material Contact during the last 24 months of his employment with Employer.  (x) "Protected Work" means any and all ideas, inventions, formulas,  Confidential Information, source codes, object codes, techniques, processes, concepts, systems,  programs, software, software integration techniques, hardware systems, schematics, flow charts,  computer data bases, client lists, trademarks, service marks, brand names, trade names,  compilations, documents, data, notes, designs, drawings, technical data, and/or training materials,  including improvements thereto or derivatives therefrom, whether or not patentable, and whether  or not subject to copyright or trademark or trade secret protection, conceived, developed or  produced by Executive, or by others working with Executive or under the direction of Executive,  during the period of Executive's employment,  or conceived,  produced or used or intended for use  by or on behalf of Employer or its customers.  (y) "Restricted Period"  means  a  period  of  12  months  following  the   Date  of  Termination.  (z) "Restricted Territory" means the area that includes the radii of 50 miles  from both  (i) Executive's office in Franklin, Tennessee and (ii) Executive's office in Lexington, Tennessee.  () "Restrictive Covenants" means the restrictive covenants contained in  Section 7(b through 7G) hereof. (bb) "Retirement" means, for purposes of Section  6(b),  Executive's  voluntary termination from  Employer other than for Good Reason after (i) Executive has attained age 65 or (ii) Executive has  attained age 62 and Executive's age and years of service with Employer totals at least 75.  2. Effective Date; Term. Upon the terms and subject to the conditions set forth in this  Agreement, Employer hereby employs Executive, and Executive hereby accepts such  employment, for the term commencing on the Effective Date and, unless otherwise earlier terminated  pursuant to Section 5 hereof, the close of business on the third anniversary of the Effective Date (the  "Initial Term"). The Initial Term and any and all renewal terms, if any, are referred to together herein  as the "Term." The third anniversary of the Effective Date is referred to herein as the"Term End  Date." Beginning on the initial Term End Date and on each subsequent anniversary of the Term  End Date thereafter, the Term shall, without further action by Executive or Employer, be extended  by an additional one-year period; provided, however, that either Employer or Executive may cause  the Term to cease to extend automatically, by giving written  notice to the other not less than 90  days prior to the scheduled expiration of the Term.  





 






6              3. Employment; Extent of Service. Executive is hereby employed on the Effective Date as  an executive officer of Company and as President, FirstBank Ventures, a division of the Bank. Executive  shall have the duties, responsibilities, and authority commensurate with such position and such other  duties as may be assigned by the Chief Executive Officer. During the Term of this Agreement, and  excluding any periods of vacation or sick leave to which Executive is entitled, Executive agrees to (i)  devote substantially all of Executive's business effort, time, energy, and skill to the business of  Employer; (ii) faithfully, loyally, and diligently perform such duties; and (iii) diligently follow and implement  all lawful management policies and decisions of Employer that are communicated to Executive. During  the Term of this Agreement, Executive shall not, without the consent of Employer, be engaged in or  provide services to any other business or enterprise (whether engaged in for profit or not) which  interferes with his obligations to Employer under this Agreement. Executive will report directly to the  Chief Executive Officer of the Company.    4. Compensation and Benefits. For the avoidance of doubt, the compensation and benefits  provided under this Section 4 shall be in consideration of services rendered to both Company and  Bank.    U!)_ Base Salary. During the Term, Bank shall pay to Executive a base salary at the rate  of$260,000 per year ("Base Salary"), less normal withholdings, payable in accordance with Bank's  payroll practices. The Compensation Committee shall review Executive's Base Salary annually and may  increase the Base Salary based on such review, but may not decrease the Base Salary unless (i)  Executive consents in writing to such decrease, or (ii) such decrease is made as part of across-the- board salary reductions affecting all or substantially all similarly-situated employees. Such adjusted  salary then shall become Executive's Base Salary for purposes of this Agreement.    (hl Retirement Plans. During the Term, Executive shall be entitled to participate in any  retirement plans available to other Bank employees similarly situated to Executive ("Peer Executives"),  and on the same basis as such Peer Executives, subject to eligibility requirements and terms and  conditions of each such plan; provided that nothing herein shall limit the ability of Bank to amend, modify,  or terminate any such plans at any time and from time to time.  W Long-Term Incentive Plans. During the Term, Executive shall be entitled to  participate in any long-term or equity incentive plans available to other Peer Executives, and on the  same basis as such Peer Executives, subject to eligibility requirements and terms and conditions of  each such plan; provided that nothing herein shall limit the ability of Company and/or Bank to amend,  modify or terminate any such plans at any time and from time to time. Subject to the vesting and  performance requirements as the Compensation Committee may require, the initial base value of the  Executive's potential long-term incentive plan award shall equal $100,000 ("Target Incentive Award''),  with a maximum payout of 200% of such amount, which number shall be reviewed by the Compensation  Committee annually and adjusted based on such review.    @   Annual Bonus. During the Term, Executive shall have an opportunity to participate  in any short-term or cash incentive plans available to other Peer Executives and based upon the  achievement of performance goals established from year to year by the Compensation Committee of  Company (the "Annual Bonus"). Subject to the vesting and performance requirements as the  Compensation Committee may require, the initial target value of the Executive's potential Annual Bonus  shall equal $420,000, which number shall be reviewed by the Compensation Committee annually and  adjusted based on such review. In addition to the Annual Bonus, Executive shall be eligible to participate  in the mortgage bonus pool, which shall be based on the profit generated by the Bank's mortgage  division and subject to the discretion of the Compensation Committee (the "Mortgage Bonus"). Except  as otherwise provided by the Compensation Committee, Executive must be employed by the Company  and/or Bank on the date the Annual Bonus and/or Mortgage Bonus, if any, is paid in order to receive  such bonus. The Annual Bonus and/or Mortgage Bonus will be paid by March 15 of the year following  the year for which such bonus is earned.  





 






7              (e) Welfare Benefit Plans. During the Term, Executive and Executive's eligible  dependents shall be eligible for participation in the welfare benefit plans, practices, policies, and  programs provided by Bank, if any, to the extent available to other Peer Executives and subject to  eligibility requirements and terms and conditions of each such plan; provided that nothing herein  shall limit the ability of Bank to amend, modify, or terminate any such benefit plans, policies, or  programs at any time and from time to time.    (f) Expenses. During the Term, and subject to Section 12 hereof, Executive  shall be entitled to receive prompt reimbursement for all reasonable expenses incurred  by  Executive in the course of performing Executive's duties and responsibilities under this Agreement,  in accordance with the policies, practices, and procedures of Bank to the extent available to other  Peer Executives with respect to travel and other business expenses.    (g) Disability Insurance. During the Term, Bank shall provide supplemental long- term disability coverage for Executive to the extent necessary to provide total long-term disability  coverage equal to 60% of Executive's Base Salary.    5. Termination of Employment. For the avoidance of doubt, if Executive's employment  with Company terminates for any reason under this Section 5, Executive's employment with Bank  shall be deemed terminated for the same reason, and if Executive's employment with Company  terminates for any reason under this Section 5, Executive's employment with Bank shall be  deemed terminated for the same reason.    (a) Termination upon Death. Executive's employment shall terminate  automatically upon Executive's death. For the avoidance of doubt, termination of Executive's  employment upon the death of Executive under this Section 5(a) shall not be considered a  termination without Cause that would entitle Executive to severance under Section 6(a).    (b) Termination by Employer. Employer may terminate Executive's employment  during the Term with or without Cause on written notice to Executive, provided that the written  notice of termination with respect to a termination without Cause shall be provided at least 30 days  prior to the effective date of such termination.    (c) Termination by  Executive.  Executive's  employment  may  be   terminated  by  Executive:  (i) at any time for Good Reason, provided that (A) before terminating this  Agreement and Executive's employment for Good Reason, (1) Executive shall give notice  to Employer of the existence of Good Reason for termination, which notice must be given  by Executive to Employer within 90 days of Executive's discovery of the existence of the  condition(s) giving rise to Good Reason for termination and shall state with reasonable  detail the condition(s) giving rise to Good Reason for termination, and (2) Employer shall  have 30 days from the date of receipt of such notice to remedy the condition(s) giving rise to  Good Reason for termination; and (B) such termination must occur within 12 months of the  initial existence of the condition(s) giving rise to Good Reason for termination; or  (ii) at any time without Good Reason, provided that Executive shall give  Employer at least 30 days prior written notice of Executive's intent to terminate.    (d) Notice of Termination. Any termination by Company and/or Bank with or  without Cause and any termination by Executive shall be communicated by Notice of Termination  to the other Party(ies) hereto given in accordance with Section 16(e) of this Agreement. The failure  by Company and/or  





 






8          Bank to set forth in the Notice of Termination any fact or circumstance which contributes to a  showing of Cause shall not waive any right of Company and/or Bank hereunder or preclude the  Company and/or Bank from asserting such fact or circumstance in enforcing its rights hereunder.  The failure by Executive to set forth in the Notice of Termination any fact or circumstance which  contributes to a showing of Good Reason shall not waive any right of Executive hereunder or  preclude Executive from asserting such fact or circumstance in enforcing its rights hereunder.    6. Obligations of Employer upon Termination.    (a) Resignation for Good Reason; Termination Other Than for Cause, Death,  or Disability. During the Term, if (x) Employer terminates Executive's employment other than for  Cause, death, or Disability, or (y) Executive terminates employment for Good Reason, then:    (i) Bank shall pay to Executive in a lump sum in cash within 30 days  after the Date of Termination, the exact payment date to be determined by Bank, Executive's  Base Salary through the Date of Termination to the extent not theretofore paid (the "Accrued  Salary"); and    (ii) subject to Section 12 hereof, Bank shall pay to Executive an amount  equal to two times the sum of (A) Executive's then cmTent Base Salary (or, in the case of a  termination for Good Reason as defined in Section l(o)(ii), the Base Salary in effect  immediately prior to the diminution in Base Salary giving rise to termination), plus (B) the  greater of Executive's target Annual Bonus for the fiscal year in which the Date of  Termination occurs or Executive's actual Annual Bonus for the fiscal year prior to the fiscal  year in which the Date of Termination occurs (such aggregate payment, the"Severance  Amount"), payable in approximately equal monthly installments during the 24-month period  following the Date of Termination, commencing on the first payroll date to occur after the 60th  day following the Date of Termination; provided that the first such payment shall consist of  all amounts payable to Executive pursuant to this Section 6(a)(ii) between the Date of  Termination and the first payroll date to occur after the 60th day following the Date of  Termination; and    (iii) if Executive elects to continue participation in any group medical,  dental, v1s1on, and/or prescription drug plan benefits to which Executive and/or Executive's  eligible dependents would be entitled under COBRA, then for a period of 18 months after  the Date of Termination (the "Health Benefits Continuation Period''), Bank shall pay to  Executive an amount in cash equal to the COBRA cost of such coverage; provided,  however, that (1) that if Executive becomes eligible to receive medical benefits under a  program of a subsequent employer or otherwise (including coverage available to  Executive's spouse through the spouse's employer), Bank's obligation to pay any portion  of the cost of health coverage as described herein shall cease, except as otherwise  provided by law; (2) the Health Benefits Continuation Period shall run concurrently with any  period for which Executive is eligible to elect health coverage under COBRA; (3) the Bank- paid portion of the monthly premium for such group health benefits, determined in  accordance with Code Section 4980B and the regulations thereunder, shall be treated as  taxable compensation by including such amount in Executive's income in accordance with  applicable rules and regulations; (4) during the Health Benefits Continuation Period, the  benefits provided in any one calendar year shall not affect the amount of benefits provided  in any other calendar year (other than the effect of any overall coverage benefits under  the applicable plans);  (5) the reimbursement of an eligible taxable expense shall be made as soon as practicable  but not later than December 31 of the year following the year in which the expense was  incurred; and (6) Executive's rights pursuant to this Section 6(a)(iii) shall not be subject to  liquidation or exchange for another benefit. The benefit described in this Section 6(a)(iii) is  referred to as the "Health Coverage Benefit;" and  





 






9              (iv) to the extent not theretofore paid or provided, Bank shall timely pay or  provide to Executive any other amounts or benefits required to be paid or provided or which  Executive is eligible to receive under any plan, program, policy, practice, contract, or agreement  of Bank and its affiliated companies and in accordance with the terms thereof, including, but not  limited to, any expense reimbursements and accrued but unused vacation (which shall be paid  out, if at all, in accordance with Bank's then current written policy regarding accrual and payment  for unused vacation pay) (such amounts and benefits shall be hereinafter referred to as the  "Other Benefits").    (v) Notwithstanding the foregoing, Bank shall be obligated to provide the  Severance Amount and the Health Coverage Benefit only if (A) within 45 days after the Date of  Termination Executive shall have executed a separation and full release of claims/covenant not  to sue in substantially the form attached hereto as Exhibit A (the "Release Agreement") and  such Release Agreement shall not have been revoked within the revocation period specified in  the Release Agreement, and (B) Executive fully complies with the obligations set forth in Section  7 hereof. For the avoidance of doubt, if Executive does not comply with the obligations set forth  in Section 7 hereof, then payment of the Severance Amount and the Health Coverage Benefit  shall cease immediately upon Executive's breach thereof.    (vi) Additionally, unless an award agreement for an equity award granted  after the Effective Date of this Agreement expressly states that this provision shall not apply, all  of Executive's then outstanding equity-based awards shall not be forfeited on Executive's Date  of Termination and shall become fully vested (to the extent not previously vested) on the 60th  day after the Date of Termination. In the case of any equity-based awards the scheduled vesting  of which is, in whole or in part, contingent upon the achievement of one or more performance  goals, such performance goals shall be deemed to be fully achieved at the maximum potential  target. The accelerated vesting that occurs pursuant to the terms of this clause (vi) is herein  referred to as the "Accelerated Vesting." To the extent necessary, this provision shall be  deemed an amendment of each outstanding equity-based award.    (b) Termination for Cause; Resignation by Executive other than Resignation for  Good Reason; Death. If during the Term Executive's employment is terminated by Employer for Cause,  by Executive other than for Good Reason, or in the event of Executive's death, then Employer shall  have no further obligations to Executive or Executive's legal representatives under this Agreement,  other than for payment of Accrued Salary which shall be paid to Executive or Executive's estate or  beneficiary, as applicable, in a lump sum in cash within 30 days after the Date of Termination, and  payments of Other Benefits, as applicable. Notwithstanding the above, if Executive's employment is  terminated by Executive's death or upon Executive's Retirement, Executive's then outstanding equity- based awards shall be subject to the Accelerated Vesting as provided Section 6(a)(vi).    (c) Non-Renewal of Agreement.  (i) If Employer elects not to renew the Term pursuant to Section 2 hereof,  and within the 12 months following the expiration of such Term (the "Non-Renewal Hold  Periotf'), Employer terminates Executive's employment other than for Cause, death, or  Disability, then, notwithstanding the expiration of the Term and subject to Section 12 hereof,  Bank shall pay to Executive the Severance Amount, payable pursuant to the payment schedule  set forth in Section 6(a)(ii) hereof, and the Health Coverage Benefit as set forth in Section  6(a)(iii) ("Non-Renewal Severance"). Additionally, any unvested equity awards held by  Executive shall be subject to Accelerated Vesting as and to the extent set forth in Section  6(a)(vi). Notwithstanding the foregoing, Bank shall be obligated to provide the Severance  Amount and Health Coverage Benefit only if (A) within 45 days after the Date of Termination  Executive shall have executed the Release Agreement and such Release Agreement shall not  have been revoked within the revocation period  





 






10            specified in the Release Agreement, and (B) Executive fully complies with the obligations  set forth in Section 7 hereof. For the avoidance of doubt, if Executive does not comply with  the obligations set forth in Section 7 hereof, then payment of the Severance Amount shall  cease immediately upon Executive's breach thereof.  At the conclusion of the Non-Renewal  Hold Period, if Employer has not paid or become obligated to pay Non-Renewal Severance,  then the restrictions contained in Section 7(c) shall not apply in the event of Executive's  subsequent termination of employment.    (ii) If Executive elects not to renew the Term pursuant to Section 2  hereof, and following the expiration of such Term, Executive's employment with Employer  terminates, then Employer shall have no further obligations to Executive or Executive's legal  representatives under this Agreement, other than for payment of Accrued Salary which shall  be paid to Executive in a lump sum in cash within 30 days after the Date of Termination,  and payment or provision of Other Benefits, as applicable.    (d) Termination for Disability. During the Term, if Employer terminates  Executive's employment for Disability of Executive, then Employer shall give Executive 30 days'  prior notice of its intent to terminate and Executive's employment shall terminate on the 30th day  after receipt of such notice (the "Disability Effective Date"), in which event, Bank shall pay to  Executive a lump sum amount equal to six months of the Executive's then current Base Salary,  plus one-half of the Target Annual Bonus for the fiscal year in which the Disability Effective Date  occurs, with such amount payable in a lump sum in cash within 30 days after the Date of  Termination, the exact payment date to be determined by Bank.    (e) Termination following a Change in Control. If, within 12 months following a  Change in Control, (x) Employer (or any successor to Employer) terminates Executive's  employment other than for Cause, or (y) Executive terminates employment for Good Reason, then:    (i) Bank (or its successor) shall pay to Executive in a lump sum in cash  within 30 days after the Date of Termination, the exact payment date to be determined by  Bank, Executive's Accrued Salary;    (iii)    subject to Section 12 hereof, Bank (or its successor) shall pay to  Executive an amount equal to the Severance Amount, payable in a lump sum in cash on the  60th day following the Date of Termination;    (iii) if Executive elects to continue participation in any group medical,  dental, vision and/or prescription drug plan benefits to which Executive and/or Executive's  eligible dependents would be entitled under COBRA, then during the Health Benefits  Continuation Period, Bank (or its successor) shall pay to Executive the Health Coverage  Benefit;    (iv) to the extent not theretofore paid or provided, Bank (or its successor)  shall timely pay or provide to Executive any Other Benefits.    (v) Notwithstanding the foregoing, Bank (or its successor) shall be  obligated to provide the Severance Amount and the Health Coverage Benefit only if(A)  within 45 days after the Date of Termination Executive shall have the Release Agreement  and such Release Agreement shall not have been revoked within the revocation period  specified in the Release Agreement, and  (B) Executive fully complies with the obligations set forth in Section 7 hereof. For the   avoidance of doubt, if Executive does not comply with the obligations set forth in Section 7  hereof, then payment of the Severance Amount and the Health Coverage Benefit shall  cease immediately upon Executive's breach thereof.  





 






11          (vi) Additionally, any unvested equity awards held by Executive shall  be subject to Accelerated Vesting as and to the extent set forth in Section 6(a)(vi).    (t) Resignations. If Executive is a member of the board of directors of  Company, the board of directors of Bank, or the board of directors of any subsidiary of Company  or Bank, then termination of Executive's employment hereunder for any reason whatsoever  shall constitute Executive's resignation from such boards of directors and as  resignation as an  officer of Bank, Company,  and of any of the subsidiaries for which Executive serves as an  officer.    7. Restrictive Covenants. For the avoidance of doubt, the Restrictive  Covenants contained in this Section 7, as well as any other provisions of this Agreement  necessary to interpret or enforce the Restrictive Covenants, shall survive termination of this  Agreement and/or termination of Executive's employment for any reason, and shall continue to  be in full force and effect in accordance with their terms.    (a) Acknowledgments.    (i) Condition of Employment and Other Consideration. Executive  acknowledges and agrees that Executive has received good and valuable consideration  for entering into this Agreement.    (ii) Access to Confidential Information, Relationships, and Goodwill.  Executive acknowledges and agrees that Executive is being provided and entrusted with  Confidential Information, including highly confidential customer information that is subject  to extensive measures to maintain its secrecy by Employer, is not known in the trade or  disclosed to the public, and would materially harm Employer's legitimate business interests  if it was disclosed or used in violation of this Agreement. Executive also acknowledges and  agrees that Executive is being provided and entrusted with access to Employer's customer  and employee relationships and goodwill. Executive further acknowledges and agrees that  the Employer would not provide access to the Confidential Information, customer and  employee relationships, and goodwill in the absence of Executive's execution of and  compliance with this Agreement. Executive further acknowledges and agrees that the  Employer's Confidential  Information, customer and employee relationships, and goodwill  are valuable assets of Employer and are legitimate business interests that are properly  subject to protection through the covenants contained in this Agreement.    (iii) Potential Unfair Competition. Executive acknowledges  and agrees  that as a result of Executive's employment with Employer, Executive's knowledge of and  access to Confidential Information, and relationships with Employer's customers and  employees, Executive would have an unfair competitive advantage if Executive were to  engage in activities in violation of this Agreement.    (iv) Voluntary Execution. Executive acknowledges and affirms that  Executive has executed this Agreement voluntarily, has read this Agreement carefully, and  had a full and reasonable opportunity to consider this Agreement (including an opportunity  to consult with legal counsel), and that Executive has not been pressured or in any way  coerced, threatened, or intimidated into signing this Agreement.    (b) Restriction on Disclosure and Use of Confidential Information. Executive agrees  that Executive shall not, directly or indirectly, use any Confidential Information on Executive's own  behalf or on behalf of any Person other than Employer, or reveal, divulge, or disclose any Confidential  Information to any Person not expressly authorized by Employer to receive such Confidential  Information. This obligation shall remain in effect for as long as the information or materials in  question retain their status as Confidential  





 






12          Information. Executive further agrees to fully cooperate with Employer in maintaining the  Confidential Information to the extent permitted by law. The Parties acknowledge and agree that  this Agreement is not intended to, and does not, alter either Employer's rights or Executive's  obligations under any state or federal statutory or common law regarding trade secrets and unfair  trade practices. Anything herein to the contrary notwithstanding, Executive shall not be restricted  from disclosing information that is required to be disclosed by law, court order, or other valid and  appropriate legal process; provided, however, that in the event such disclosure is required by law,  Executive shall provide Employer with prompt notice of such requirement so that Employer may  seek an appropriate protective order prior to any such required disclosure by Executive. Executive  understands and acknowledges that nothing in this section limits Executive's ability to report  possible violations of federal, state, or local law or regulation to any governmental agency or entity;  to communicate with any government agencies or otherwise participate in any investigation or  proceeding that may be conducted by any government agencies in connection with any charge or  complaint, whether filed by Executive, on Executive's behalf, or by any other individual; or to make  other disclosures that are protected under the whistleblower provisions of federal, state, or local law  or regulation, and Executive shall not need the prior authorization of Employer to make any such reports  or disclosures and shall not be required to notify Employer that Executive has made such reports or  disclosures. In addition, and anything herein to the contrary notwithstanding, Executive is hereby  given notice that Executive shall not be criminally or civilly liable under any federal or state trade  secret law for disclosing a trade secret (as defined by 18 U.S.C.  § 1839) in confidence to a federal, state, or local government official, either directly or indirectly, or  to an attorney, in either event solely for the purpose of reporting or investigating a suspected  violation of law; or disclosing a trade secret (as defined by 18 U.S.C. § 1839) in a complaint or other  document filed in a lawsuit or other proceeding, if such filing is made under seal.    (c) Non-Competition. Except as provided herein, Executive agrees that, during  the Restricted Period, Executive will not, without prior written consent of Employer, directly or  indirectly (i) carry on or engage in Competitive Services within the Restricted Territory  on  Executive's  own behalf or on behalf of any Person or any Principal or Representative of any  Person, or (ii) own, manage, operate, control or participate in the ownership, management,  operation or control of any business, whether in corporate, proprietorship or partnership form or  otherwise, where such business is engaged in the provision of Competitive Services within the  Restricted Territory; provided that nothing herein shall prohibit Executive from being a passive  owner of not more than five percent of the outstanding securities of any publicly traded company  engaged in the Competitive Services, so long as Executive does not serve on the board of directors  of such company and does not engage in the management of such company. The restrictions  contained  in this Section 7(c) shall not apply in the event that the Date of Termination  occurs in  connection with or subsequent to a Change in Control.    (d) Non-Solicitation of Protected Customers. Executive agrees that, during the  Restricted Period, Executive shall not, without the prior written consent of Employer, directly or  indirectly, on Executive's own behalf or as a Principal or Representative of any Person, solicit,  divert, or attempt to solicit or divert a Protected Customer for the purpose of engaging in, providing,  or selling Competitive Services.    (e) Non-Recruitment of Employees and Independent Contractors. Executive  agrees that during the Restricted Period, Executive shall not, without the prior written consent of  Employer, directly or indirectly, whether on Executive's own behalf or as a Principal or  Representative of any Person, solicit or induce or attempt to solicit or induce any employee or  individual independent contractor of Employer to terminate an employment relationship with  Employer or to enter into employment or independent contractor relationship with Executive or any  such other Person. Notwithstanding the foregoing, the provisions of this Section 7(e) shall not be  violated by general advertising or solicitation not specifically targeted at employees or independent  contractor of Employer, or actions taken  by any person or entity with which Executive is associated  if Executive is not personally involved in any manner in the  





 






13          matter and has not identified such employee for soliciting or hiring and has not provided any  information regarding the employee's qualifications.    (f) Proprietary Rights.  (i) Ownership and Assignment of Protected Works. Executive agrees  that any and all Confidential Information and Protected Works are the sole property of  Employer, and that no compensation in addition to Executive's compensation hereunder is  due to Executive for development or transfer of such Protected Works. Executive agrees  that Executive shall promptly disclose in writing to Employer the existence of any Protected  Works. Executive hereby assigns and agrees to assign all of Executive's rights, title, and  interest in any and all Protected Works, including all patents or patent applications, and all  copyrights therein, to Employer. Executive shall not be entitled to use Protected Works for  Executive's own benefit or the benefit of anyone except Employer without written permission  from Employer and then only subject to the terms of such permission. Executive further  agrees that Executive will communicate to Employer any facts known to Executive and testify  in any legal proceedings, sign all lawful papers, make all rightful oaths, execute all  divisionals, continuations, continuations-in-part, foreign counterparts, or reissue  applications, all assignments, all registration applications, and all other instruments or  papers to carry into full force and effect the assignment, transfer, and conveyance hereby  made or to be made and generally do everything possible for title to the Protected Works  and all patents or copyrights or trademarks or service marks therein to be clearly and  exclusively held by Employer. Executive agrees that Executive will not oppose or object in any  way to applications for registration of Protected Works by Employer or others designated by  Employer. Executive agrees to exercise reasonable care to avoid making Protected Works  available to any third party and shall be liable to Employer for all damages and expenses,  including reasonable attorneys' fees, if Protected Works are made available to third parties by  Executive without the express written consent of Employer.    Anything herein to the contrary notwithstanding, Executive  will not be  obligated to assign to Employer any Protected Work for which no equipment, supplies,  facilities, or Confidential Information of Employer was used and which was developed  entirely on Executive's own time, unless (A) the invention relates (1) directly to the business  of Employer, or (2) to the Employer's actual or demonstrably anticipated research or  development; or (B) the  invention results from any work performed by Executive for  Employer. Executive likewise will not be obligated to assign to Employer any Protected Work  that is conceived by Executive after Executive leaves the employ of Employer, except that  Executive is so obligated if the same relates to or is based on Confidential Information to  which Executive had access by virtue of employment with Employer. Similarly, Executive  will not be obligated to assign any Protected Work to Employer that was conceived and  reduced to practice prior to Executive's employment with Employer, regardless of whether  such Protected Work relates to or would be useful in the business of Employer. Executive  acknowledges and agrees that there are no Protected Works conceived and reduced to  practice by Executive prior to his employment with Employer.    (ii) No Other Duties. Executive acknowledges and agrees that there is  no other contract or duty on the part of Executive now in existence to assign Protected  Works to anyone other than Employer.    (iii) Works Made for Hire. Employer and Executive acknowledge that in  the course of Executive's employment with Employer, Executive may from time to time  create for Employer copyrightable works. Such works may consist of manuals, pamphlets,  instructional materials, computer programs, software, software integration techniques,  software codes, and data, technical data, photographs, drawings, logos, designs, artwork,  or other copyrightable material, or portions thereof, and may be created within or without  Employer's facilities and before, during or  





 






14        after normal business hours. All such works related to or useful in the business of Employer  are specifically intended to be works made for hire by Executive, and Executive shall  cooperate with Employer in the protection of Employer's copyrights in such works and, to  the extent deemed desirable by Employer, the registration of such copyrights.    (h) Return of Materials. Executive agrees to not retain or destroy (except as set  forth below), and to immediately return to Employer on or prior to the Date of Termination, or at  any other time Employer requests such return, any and all property of Employer that is the  possession of Executive or subject to Executive's control, including, but not limited to, keys, credit  and identification cards, equipment, customer files and information, papers, drawings, notes,  manuals, specifications, designs, devices, code, email, documents, diskettes, CDs, tapes, keys,  access cards, credit cards, identification cards, computers, mobile devices, other electronic media,  all other files and documents relating to Employer and its business (regardless of form, but  specifically including all electronic files and data of Employer), together with all Protected Works  and Confidential Information belonging to Employer or that Executive received from or through his  employment with Employer. Executive will not make, distribute, or retain copies of any such  information or property. To the extent that Executive has electronic files or information in  Executive's possession or control that belong to Employer, contain Confidential Information, or  constitute Protected Works (specifically including but not limited to electronic files or information  stored on personal computers, mobile devices, electronic media, or in cloud storage), on or prior  to the Date of Termination, or at any other time Employer requests, Executive shall (i) provide  Employer with an electronic copy of all of such files or information (in an electronic format that  readily accessible by Employer);  (ii) after doing so, delete all such files and information, including  all copies and derivatives thereof, from all non- Employer-owned computers, mobile devices,  electronic  media, cloud storage, and other media, devices, and equipment, such that such files  and information are permanently deleted and irretrievable; and (iii) provide a written certification to  Employer that the required deletions have been completed and specifying the files and information  deleted and the media source from which they were deleted.    (i) Enforcement of Restrictive Covenants. For the avoidance of doubt, nothing  in this Section 7(i) limits the remedies available to Employer under Section 14 hereof.    (i) Rights and Remedies Upon Breach. The Parties specifically  acknowledge and agree that the remedy at law for any breach of the Restrictive Covenants will  be inadequate, and that in the event Executive breaches any of the Restrictive Covenants,  Employer shall have the right and remedy, without the necessity of proving actual damage  or posting any bond, to enjoin, preliminarily and permanently, Executive from violating the  Restrictive Covenants and to have the Restrictive Covenants specifically enforced by any  court of competent jurisdiction, it being agreed that any breach of the Restrictive Covenants  would cause irreparable injury to Employer and that money damages would not provide an  adequate remedy to Employer. Executive understands and agrees that if he materially  violates any of the obligations set forth in the Restrictive Covenants, the Restricted Period  shall cease to run during the pendency of any litigation over such violation, provided that such  litigation was initiated during the Restricted Period. If Employer does not substantially  prevail in such litigation, the Restricted Period shall be deemed to have continued to run during  the litigation. Such rights and remedies shall be in addition to, and not in lieu of, any other  rights and remedies available to Employer at law or in equity. Employer's ability to enforce its  rights under the Restrictive Covenants or applicable law against Executive shall not be  impaired in any way by the existence of a claim or cause of action on the part of Executive  based on, or arising out of, this Agreement or any other event or transaction.  (ii) Severability and Modification of Covenants. Executive  acknowledges and agrees that each of the Restrictive Covenants is reasonable and valid  in time and scope and in all other respects. The Parties agree that it is their intention that  the Restrictive Covenants be enforced in accordance with their terms to the maximum  extent permitted by law. Each of the Restrictive 





 






15            Covenants shall be considered and construed as a separate and independent covenant.  Should any part or provision of any of the Restrictive Covenants, or any other provision of  this Section 7, be held invalid, void, or unenforceable, such invalidity, voidness, or  unenforceability shall not render invalid, void, or unenforceable any other part or provision  of this Agreement or such Restrictive Covenant. If any of the provisions of the Restrictive  Covenants should ever be held by a court of competent jurisdiction to exceed the scope  permitted by the applicable law, such provision or provisions shall be automatically modified  to such lesser scope as such court may deem just and proper for the reasonable protection  of Employer's legitimate business interests and may be enforced by Employer to that extent  in the manner described above and all other provisions of this Agreement shall be valid and  enforceable.  G) Existing Covenants. Executive represents   and   warrants   that   Executive's  employment with Employer does not and will not breach any agreement that Executive has with any  former employer to keep in confidence proprietary or confidential information or not to compete with  any such former employer. Executive will not disclose to Employer or use on its behalf any  proprietary or confidential information of any other party required to be kept confidential by Executive.  (k) Disclosure of Agreement. Executive acknowledges and agrees that, during the  Restricted Period, Executive will disclose the existence and terms of the Protective Covenants in  Section 7 of this Agreement to any prospective employer or business partner, within the Restricted  Territory prior to entering into an employment, partnership, or other business relationship with such  prospective employer or business partner. Executive further agrees that Employer shall have the  right to make any such prospective employer or business partner of Executive within the Restricted  Territory aware of the existence and terms of the Protective Covenants in Section 7 of this  Agreement.    8. Non-exclusivity of Rights. Nothing in this Agreement shall prevent or limit  Executive's continuing or future participation in any employee benefit plan, program, policy, or  practice provided by Employer and for which Executive may qualify, except as specifically provided  herein. Amounts that are vested benefits or which Executive is otherwise entitled to receive under  any plan, policy, practice, or program of Employer at or subsequent to the Date of Termination shall  be payable in accordance with such plan, policy, practice, or program except as explicitly modified  by this Agreement.    9. Full Settlement; No Mitigation. Employer's obligation to make the payments  provided for in this Agreement and otherwise to perform its obligations hereunder shall not be  affected by any set-off, counterclaim, recoupment, defense or other claim, right or action which  Employer may have against Executive or others. In no event shall Executive be obligated to seek  other employment or take any other action by way of mitigation of the amounts payable to  Executive under any of the provisions of this Agreement and such amounts shall not be reduced  whether or not Executive obtains other employment. For the avoidance of doubt, nothing in this  Section 9 shall impact Employer's remedy ofrecoupment  set forth in Section 14 hereof.    10. Mandatory Reduction of Paymeilts in Certain Events.    (a) Notwithstanding anything in this Agreement to the contrary, in the event it shall  be determined that any Payment would, if paid, be subject to any Excise Tax, then, prior to the  making of any Payments to or for the benefit of Executive, a calculation shall be made comparing (i)  the net after-tax benefit to Executive of the Payments after payment by Executive of the Excise Tax, to  (ii) the net after-tax benefit to Executive if the Payments had been limited to the extent necessary to  avoid being subject to the Excise Tax. If the amount calculated under (i) above is less than the amount  calculated under (ii) above, then the Payments shall be limited to the extent necessary to avoid being  subject to the Excise Tax (the "Reduced Amount"). The reduction of the Payments due hereunder,  if applicable, shall be made by first reducing cash Payments and then, to the extent necessary,  reducing those Payments having the next highest ratio of Parachute Value  





 






16        to actual present value of such Payments as of the date of a Change in Control, as determined by  the Determination Firm (as defined below). For purposes of this Section 10, present value shall be  determined in accordance with Section 280G(d)(4) of the Code.    (b) All determinations required to be made under this Section 10, including  whether an Excise Tax would otherwise be imposed, whether the Payments shall be reduced, the  amount of the Reduced Amount, and the assumptions to be utilized in arriving at such  determinations, shall be made by a nationally recognized accounting firm or compensation consulting  firm mutually acceptable to Employer and Executive (the "Determination Firm") which shall provide  detailed supporting calculations to Employer and Executive within 15 business days after the receipt  of notice from Executive that a Payment is due to be made, or such earlier time as is requested by  Employer. All fees and expenses of the Determination Firm shall be borne solely by Employer. Any  determination by the Determination Firm shall be binding upon Employer and Executive. As a result  of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination  by the Determination Firm hereunder, it is possible that Payments which Executive was entitled to, but  did not receive pursuant to Section l0(a), could have been made without the imposition of the Excise  Tax ("Underpayment"), consistent with the calculations required to be made hereunder. In such event,  the Determination Firm shall determine the amount of the Underpayment that has occurred and  any such Underpayment shall be promptly paid by Employer to or for the benefit of Executive but no  later than March 15 of the year after the year in which the Underpayment is determined to exist,  which is when the legally binding right to such Underpayment arises.    (c) In the event that the provisions of Code Section 280G and 4999 or any  successor provisions are repealed without succession, this Section 10 shall be of no further force  or effect. In the event the provisions of Code Section 280G and 4999 are modified, this Section 10  shall be modified accordingly.    11. Successors.    (a) This Agreement is personal to Executive and shall not be assignable by  Executive otherwise than by will or the laws of descent and distribution. This Agreement shall inure  to the benefit of and be enforceable by Executive's legal representatives.    (b) This Agreement can be assigned by Company and/or Bank only to a  subsidiary or successor and shall be binding and inure to the benefit of Company and Bank, and  their successors and assigns. The Company and/or Bank shall require any successor or assignee,  whether direct or indirect, by purchase, merger, consolidation or otherwise, to all or substantially  all the business or assets of the Bank, expressly and unconditionally to assume and agree to  perform the Bank's obligations under this Agreement, in the same manner and to the same extent  that the Bank would be required to perform if no such succession or assignment had taken place.    12. Code Section 409A.    (a) General. This Agreement shall be interpreted and administered in a manner  so that any amount or benefit payable hereunder shall be paid or provided in a manner that is  either exempt from or compliant with the requirements of Section 409A of the Code and applicable  Internal Revenue Service guidance and Treasury Regulations issued thereunder (and any  applicable transition relief under Section 409A of the Code). Nevertheless, the tax treatment of the  benefits provided under the Agreement is not warranted or guaranteed. Neither Company nor  Bank, nor their directors, officers, employees, or advisers, shall be held liable for any taxes,  interest, penalties, or other monetary amounts owed by Executive as a result of the application of  Section 409A of the Code.    (b) Definitional Restrictions. Notwithstanding anything in this Agreement to the  contrary, to the extent that any amount or benefit that would constitute non-exempt "deferred  compensation 





 






17        for purposes of Section 409A of the Code ("Non-Exempt Deferred Compensation") would  otherwise be payable or distributable hereunder, or a different form of payment of such Non- Exempt Deferred Compensation would be effected, such Non-Exempt Deferred Compensation will  not be payable or distributable to Executive, and/or such different form of payment will not be  effected, by reason of such circumstance unless the circumstances giving rise to such payment  event meet any description or definition of"change in control event" or "separation from service," as  the case may be, in Section 409A of the Code and applicable regulations (without giving effect to  any elective  provisions that may be available under such definition). This provision does not affect  the dollar amount or prohibit the vesting of any Non-Exempt Deferred Compensation termination of  employment, however defined. If this provision prevents the payment or distribution of any Non- Exempt Deferred Compensation, or the application of a different form of payment, then, subject to  subsection (c) below, such payment or distribution shall be made at the time and in the form that  would have applied absent the non-409A-conforming event.  (c) Six-Month Delay in Certain Circumstances. Notwithstanding anything in this  Agreement to the contrary, if any amount or benefit that would constitute Non-Exempt Deferred  Compensation would otherwise be payable or distributable under this Agreement by reason of  Executive's separation from service during a period in which Executive is a specified employee (as  determined by Employer in accordance with Section 409A of the Code and Treasury Regulations§  l.409A-3(i)(2)), then, subject to any permissible acceleration of payment by Employer under Treas.  Reg. Section 1.409A-3G)(4)(ii) (domestic relations order), G)(4)(iii) (conflicts of interest), or (j)(4)(vi)  (payment of employment taxes): (i) the amount of such Non-Exempt Deferred Compensation that  would otherwise be payable during the six- month period immediately following Executive's  separation from service will be accumulated through and paid or provided on the first day of the  seventh month following Executive's separation from service (or, if Executive dies during such period,  within 30 days after Executive's death) (in either case, the "Required Delay Perioff'); and (ii) the  normal payment or distribution schedule for any remaining payments or distributions will resume  at the end of the Required Delay Period.    (d) Treatment of Installment Payments. Each payment of termination benefits  under this Agreement, including but not limited to Section 6, shall be considered a separate  payment, as described in Treas. Reg. Section l.409A-2(b)(2), for purposes of Section 409A of the  Code.  (e) Timing of Release of Claims. Whenever in this Agreement a payment or  benefit is conditioned on Executive's execution of a release of claims, such release must be  executed and all revocation periods shall have expired within 60 days after the Date of Termination;  failing which such payment or benefit shall be forfeited. If such payment or benefit constitutes Non- Exempt Deferred Compensation, then such payment or benefit (including any installment  payments) that would have otherwise been payable during such 60-day period shall be  accumulated and paid on the 60th day after the Date of Termination provided such release shall have  been executed and such revocation periods shall have expired. If such payment or benefit is exempt  from Section 409A of the Code, Employer may elect to make or commence payment at any time  during such period.    (t)  Timing of Reimbursements and In-kind Benefits. If Executive is entitled to be  paid or reimbursed for any taxable expenses under this Agreement, and such payments or  reimbursements are includible in Executive's federal gross taxable income, the amount of such  expenses reimbursable in any one calendar year shall not affect the amount reimbursable in any  other calendar year, and the reimbursement of an eligible expense must be made no later than  December 31 of the year after the year in which the expense was incurred. No right of Executive to  reimbursement of expenses under this Agreement shall be subject to liquidation or exchange for  another benefit.    (g) Permitted Acceleration. Employer shall have the sole authority to make  any  accelerated distribution permissible under Treas. Reg. Section 1.409A-3(j)(4) to Executive of  deferred amounts, provided that such distribution meets the requirements of Treas. Reg. Section  1.409A-3(j)(4).  





 






18              13. Regulatory Action.    (a) If Executive is removed and/or permanently prohibited from participating in  the conduct of Bank's affairs by an order issued under Section 8(e)(4) or 8(g)(l) of the Federal  Deposit Insurance Act ("FD/A") (12 U.S.C. 1818(e)(4) and (g)(l)), all obligations of Employer under  this Agreement shall terminate, as of the effective date of such order.  (b) If Executive is suspended and/or temporarily prohibited from participating in  the conduct of Bank's affairs by a notice served under Section 8(e)(3) or 8(g)(l) of the FDIA (12  U.S.C. 1818(e)(3) and (g)(l)), all obligations of Employer under this Agreement shall be suspended  as of the date of service, unless stayed by appropriate proceedings. If the charges in the notice  are dismissed, Employer shall reinstate (in whole or in part) any of its obligations which were  suspended.  (c) If Bank is in default (as defined in Section 3(x)(l) of the FDIA), all obligations  under this Agreement shall tenninate as of the date of default.    (d) All obligations under this Agreement shall be terminated, except to the extent  a detennination is made that continuation of the Agreement is necessary for the continued operation  of Bank (1) by the director of the FDIC or his or her designee (the "Director"), at the time the FDIC  enters into an agreement to provide assistance to or on behalf of Bank under the authority  contained in 13(c) of the FDIA; or (2) by the Director, at the time the Director approves a supervisory  merger to resolve problems related to operation of Bank when Bank is determined by the Director to  be in an unsafe and unsound condition.    14. Compensation Recoupment Policy. Any incentive compensation, including, but not  limited to, cash-based and equity-based compensation, awarded to Executive by Employer shall  be subject to any written compensation recoupment policy that the Compensation Committee may  adopt from time to time that is applicable by its terms to Executive. In addition, the Compensation  Committee may specify in any written documentation memorializing an incentive award that  Executive's rights, payments, and benefits with respect to such award shall be subject to reduction,  cancellation, forfeiture, or recoupment upon the occurrence of certain specified events, in addition  to any otherwise applicable conditions of such award. Such events may include, but shall not be  limited to: (i) termination of employment for Cause, (ii) violation of material Company or Bank policies,  (iii) breach of noncompetition, confidentiality, or other restrictive covenants, (iv) other conduct by  Executive that is detrimental to the business or reputation of the Employer, or (v) a later  determination that the amount realized from a performance-based award was based on materially  inaccurate financial statements or any other materially inaccurate performance metric criteria, whether  or not Executive caused or contributed to such material inaccuracy. The reduction, cancellation,  forfeiture, and recoupment rights associated with any equity awards or similar awards granted to  Executive, if any, shall be as provided in the award certificate memorializing any such award.    15. Indemnification. Employer shall indemnify Executive for liabilities incurred by  Executive while acting in good faith as an officer to the fullest extent provided for any other officer  of Employer. To the extent that Employer maintains director and officer liability insurance, such  insurance shall cover Executive to the same extent as any other officer of Employer.    16. Miscellans:ous.    (a) Applicable Law; Consent to Arbitration. Employer and Executive agree that  this Agreement shall be governed by and construed and interpreted in accordance with the laws  of the State of Tennessee without giving effect to its conflicts of law principles. Any dispute or  controversy arising under or in connection with this Agreement shall be settled exclusively by  arbitration, conducted before a panel of three arbitrators sitting in a location selected by Executive  within fifty (50) miles from the headquarters 





 






19        location of the Bank, in accordance with the rules of the American Arbitration Association then in  effect.  Judgment may be entered on the arbitrator's award in any court having jurisdiction    (b) Non-Duplication. Notwithstanding anything to the contrary in this  Agreement, and except as specifically provided below, any severance payments or benefits  received by Executive pursuant to this Agreement shall be in lieu of any general severance policy  or other severance plan maintained by Employer (other than a stock option, restricted stock, share  or unit, performance share or unit, supplemental retirement, deferred compensation, or similar plan  or agreement which may contain provisions  operative on a termination of Executive's employment  or may incidentally refer to accelerated vesting or accelerated payment upon a termination of  employment).    (c) Captions. The captions of this Agreement are not part of the provisions  hereof and shall have no force or effect.    (d) Amendments. This Agreement may not be amended or modified otherwise  than- by a written agreement executed by the Parties or their respective successors and legal  representatives.    (e) Notices. All notices and other communications hereunder shall be in writing  and shall be given by hand delivery to the other Party(ies) or by registered or certified mail, return  receipt requested, postage prepaid, addressed as follows:    If to Executive:  On file with  Bank  Ifto Company and/or Bank:  211 Commerce Street  Suite 300  Nashville, Tennessee  37201 Attention: General  Counsel    or to such other address as a Party shall have furnished to the other Party(ies) in writing in  accordance herewith. Notice and communications shall be effective when actually received by the  addressee.  (f) Severability. The invalidity or unenforceability of any provision of this  Agreement shall not affect the validity or enforceability of any other provision of this Agreement.  (g) Withholding. Employer may withhold from any amounts payable under this  Agreement such federal, state, local or foreign taxes as shall be required to be withheld pursuant  to any applicable law or regulation.    (h) Waivers. Failure of any Party to insist, in one or more instances, on  performance by the other in strict accordance with the terms and conditions of this Agreement shall  not be deemed a waiver or relinquishment of any right granted in this Agreement or of the future  performance of any such term or condition or of any other term or condition of this Agreement,  unless such waiver is contained in a writing signed by the Party making the waiver.    (i) Entire Agreement. This Agreement contains the entire agreement between  the Parties with respect to the subject matter hereof and, from and after the date hereof, this  Agreement shall supersede any other agreement, written or oral, between the Parties relating to  the subject matter of this Agreement, including but not limited to any prior discussions,  understandings, letters, and/or agreements between the Parties, written or oral, at any time  (expressly including, but not limited to, any confidentiality, non-solicitation, non-recruitment, and/or  non-competition agreements Executive has previously entered into with Bank or Company);  provided, however, that the foregoing shall not be construed to limit any restrictive covenants set  forth in an equity award agreement entered into by the Executive after the Effective Date. 





 






20          G)    Construction. The Parties understand and agree that because they have been  given the opportunity to have counsel review and revise this Agreement, the normal rule of construction  to the effect that any ambiguities are to be resolved against the drafting Party shall not be employed in  the interpretation of this Agreement. Instead, the language of all parts of this Agreement shall be  construed as a whole, and according to its fair meaning, and not strictly for or against any Party.  (k) Counterparts. This Agreement may be executed in two or more counterparts,  each of which shall be deemed an original, but all of which taken together shall constitute one and the  same instrument.    (l) Survival. The rights and obligations of the Parties under Sections 6, 7, 10, 12,  14, 15, 16 shall survive the expiration and/or termination of this Agreement and the termination of  Executive's employment hereunder for the periods expressly designated in such sections or, if no such  period is designated, for the maximum period permissible under applicable law.      [signature page follows]  





 






21              [N WITNESS WHEREOF, the Parties hereby signify their agreement to these terms by their  signatures below, as of the date written on the first page of this Agreement.    WILBURN (WIB) J. EVANS    Wilburn (Wib) J. Evans        FIRSTBANK        Christopher T. Holmes  President and Chief Executive Officer        FB FINANCIAL CORPORATION          Christopher T. Holmes  President and Chief Executive Officer      [Evans - Employment Agreement Signature Page]  





 






21        IN WITNESS WHEREOF, the Parties hereby signify their agreement to these terms by their  signatures below, as of the date written on the first page of this Agreement.    WILBURN (WIB) J. EVANS        Wilburn (Wib) J. Evans    ______________________________________  Christopher T. Holmes  President and Chief Executive Officer        FB FINANCIAL CORPORATION    President and Chief Executive Officer      [Evans - Employment Agreement Signature Page]  





 






22             Exhibit A    





 






23          Exhibit A - Form of Release    SEPARATION AGREEM_ENT    THIS SEPARATION AGREEMENT (the "Agreemenf') is entered into as of the Effective  Date, as defined in Paragraph 6 hereof, by and between FB Financial Corporation (the "Holding  Company"), FirstBank, a Tennessee bank and wholly-owned subsidiary of the Holding Company  (the "Bank" and, together with the Holding Company, the "Company") and Wilburn ("Wib") J.  Evans ("Executive"). Together, the Company, the Bank and Executive may be referred to hereinafter  as the "Parties".  In consideration of the payments, covenants and releases described below, and in  consideration of other good and valuable consideration, the receipt and sufficiency of all of which  is hereby acknowledged, the Company, the Bank and Executive agree as follows:    1. Separation  from  Employment.    Executive's  employment   with  Company   and  Bank   ended  on [  ] (the "Termination Date"). To the extent not already paid to Executive,  within 30 days of the Termination Date, the Bank shall pay to Executive (a) all accrued but unpaid  Base Salary (as defined in the Employment Agreement among the Parties) through the Termination  Date; (b) reimbursement for any unreimbursed  business expenses properly incurred  by Executive  in accordance with Bank policy prior to the Termination Date; and (c) to the extent required by the  Bank's policy regarding accrual and payment for unused vacation pay, cash in lieu of any accrued  but unused vacation through the Termination Date. Additionally, the Bank shall timely pay to Executive  any benefits accrued or payable to Executive under the Bank's benefit plans (in accordance with the  terms of such benefit plans). Executive will receive by separate letter information regarding  Executive's rights regarding continuation of health insurance under Section 4980B of the Internal  Revenue Code ("COBRA"), and to the extent that Executive has such rights, nothing in this  Agreement will change or impair those rights.    2. Separation Obligations of the Company. In consideration of Executive's promises contained  in this Agreement, the Company agrees to provide the severance as set forth in Section 6 of the  Employment Agreement (as defined in Paragraph 7 hereof), subject to the requirements and  limitations set forth therein. The Parties acknowledge and agree that the payments and benefits set  forth in this Paragraph 2 exceed any and all actions, pay, and benefits that the Company might  otherwise have owed to Executive by contract or law, and that the payments and benefits set forth  in this Paragraph 2 constitute good, valuable, and sufficient consideration for Executive's release  and agreements herein. The Company's obligation to provide the payments and benefits set forth  in this Paragraph 2 is expressly contingent on Executive executing and not revoking this Agreement  pursuant to Paragraph 6 below. The Bank's obligation to make the payments set forth herein shall  cease upon Executive's breach of this Agreement or the surviving provisions of Executive's  Employment Agreement as provided in Paragraph 7 below.    3. General Re_lease of Claims and Covenant Not To Sue.    a. General Release of Claims. In consideration of the payments made to Executive by  the Bank and the promises contained in this Agreement, Executive on behalf of himself and  Executive's agents and successors in interest, hereby UNCONDITIONALLY RELEASES AND  DISCHARGES the Company, its successors, subsidiaries, parent companies, assigns, joint  ventures, and affiliated companies and their respective agents, legal representatives, shareholders,  attorneys, employees, members, managers, officers and directors (collectively, the "Releasees")  from ALL CLAIMS, LIABILITIES, DEMANDS AND CAUSES OF ACTION which Executive may by  law release, as well as all contractual obligations not expressly set forth in this Agreement, whether  known or unknown, fixed or contingent, that Executive may have or claim to have against any  Releasee for any reason as of the date of execution of this Agreement. This release includes, but  is not limited to, claims arising under federal, state, or local laws prohibiting  





 






24              employment discrimination; claims arising under severance plans and contracts; and claims growing out  of any legal restrictions on the Company's rights to terminate its employees or to take any other  employment action, whether statutory, contractual, or arising under common law or case law. Executive  specifically acknowledges and agrees that Executive is releasing any and all rights under federal, state  and local employment laws including without limitation the Age Discrimination in Employment Act, the  Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the  Americans With Disabilities Act, the Family and Medical Leave Act, the Genetic Information  Nondiscrimination Act, the anti-retaliation provisions of the Fair Labor Standards Act, the Employee  Retirement Income Security Act, the Equal Pay Act, the Occupational Safety and Health Act, the Worker  Adjustment and Retraining Notification Act, the Employee Polygraph Protection Act, the Fair Credit  Reporting Act, and any and all other local, state, and federal law claims arising under statute or common  law. It is agreed that this is a general release and it is to be broadly construed as a release of all claims,  except those that cannot be released by law. For the avoidance of doubt, notwithstanding the above,  Executive does not release Releasees from  (i) any rights or claims based on events that occur after Executive executes this Agreement or (ii) any  rights or claims arising under this Agreement, including without limitation any rights to benefits accrued  or payable to Executive under the Company's benefit plans.    b. Covenant Not to Sue. Except as expressly set forth in Paragraph 4 below, Executive  further hereby AGREES NOT TO FILE A LAWSUIT or other legal claim or charge to assert against any  of the Releasees any claim released by this Agreement.    c. Acknowledgement Regarding Payments and Benefits. Executive acknowledges and  agrees that Executive has been paid all wages and accrued benefits to which Executive is entitled  through the date of execution of this Agreement. Other than the payments set forth in this Agreement  (including any benefits accrued or payable to Executive under the Bank's benefit plans (in accordance with  the terms of such benefit plans)), the Parties agree that the Company owes no additional amounts to  Executive for wages, back pay, severance pay, bonuses, damages, accrued vacation, benefits,  insurance, sick leave, other leave, or any other reason.    d. Other Representations and Acknowledgements. This Agreement is intended to and does  settle and resolve all claims of any nature that Executive might have against the Company arising out of  their employment relationship or the termination of employment or relating to any other matter, except those  that cannot be released by law. By signing this Agreement, Executive acknowledges that Executive is  doing so knowingly and voluntarily, that Executive understands that Executive may be releasing claims  Executive may not know about, and that Executive is waiving all rights Executive may have had under  any law that is intended to protect Executive from waiving unknown claims. Executive warrants that  Executive has not filed any notices, claims, complaints, charges, or lawsuits of any kind whatsoever  against the Company or any of the Releasees as of the date of execution of this Agreement. This  Agreement shall not in any way be construed as an admission by the Company or any of the Releasees  of wrongdoing or liability or that Executive has any rights against the Company or any of the Releasees.  Executive represents and agrees that Executive has not transferred or assigned, to any person or entity,  any claim that Executive is releasing in this Parag@Q_h 3.    4. Protected Rights. Executive understands that nothing contained in this Agreement limits  Executive's ability to file a charge or complaint with the Equal Employment Opportunity Commission, the  National Labor Relations Board, the Securities and Exchange Commission, or any other federal, state  or local governmental agency or commission ("Government Agencies"). Executive further  understands that this Agreement does not limit Executive's ability to communicate with any Government  Agencies or otherwise participate in any investigation or proceeding that may be conducted by any  Government Agencies in connection with any charge or complaint, whether filed by Executive, on  Executive's behalf, or by any other individual. However, based on Executive's release of claims set forth  in Paragraph 3 of this  





 






25        Agreement, Executive understands that Executive is releasing all claims that Executive may have,  as well as, to the extent permitted by applicable law, Executive's right to recover monetary damages  or obtain other relief that is personal to Executive in connection with any claim Executive is releasing  under this Agreement.    5. Acknowledgment.  The Company hereby advises Executive to consult with an  attorney prior to executing this Agreement and Executive acknowledges and agrees that the  Company has advised, and hereby does advise, Executive of Executive's opportunity to  consult an attorney or other advisor and has not in any way discouraged Executive from  doing so. Executive expressly acknowledges and agrees that Executive has been offered at  least [21] days to consider this Agreement before signing it, that Executive has read this  Agreement and Release carefully, and that Executive has had sufficient time and opportunity  to consult with an attorney or other advisor of Executive's choosing concerning the  execution of this Agreement. Executive acknowledges and agrees that Executive fully  understands that the Agreement is final and binding, that it contains a full release of all claims  and potential claims, and that the only promises or representations Executive has relied  upon in signing this Agreement are those specifically contained in the Agreement itself.  Executive acknowledges and agrees that Executive is signing this Agreement voluntarily,  with the full intent of releasing the Company from all claims covered by Paragraph 3.    6. Revocation and Effective Date. The Parties agree Executive may revoke the Agreement at  will within seven days after Executive executes the Agreement by giving written notice of revocation  to Company.  Such notice must be delivered to [ ] and must actually be received by [ ] at or  before the above-referenced seven-day deadline.  The Agreement may  not be revoked after the  expiration of the seven-day deadline. In the event that Executive revokes the Agreement within the  revocation period described in this Paragraph 6, this Agreement shall not be effective or enforceable,  and all rights and obligations hereunder shall be void and of no effect. Assuming that Executive  does not revoke this Agreement within the revocation period described above, the effective date of  this Agreement (the "Effective Date") shall be the eighth day after the day on which Executive  executes this Agreement.    7. Termination of Employment Agreement; Survival of Protective Covenants. Executive  acknowledges  and  agrees  that  the  Employment  Agreement  executed  by  the  Parties  on   or  about [ ] (the "Employment Agreement") is hereby terminated, without further action by the  Parties, as of the Termination  Date and shall be of no further force and effect, and that except as  expressly set forth in this Agreement, the Company shall have no continuing obligations to  Executive under the Employment Agreement;provided, however, that Sections 6, 7, 9, 10, 12, 14,  15, and 16 shall survive and remain in full force and effect in accordance with their terms.    8. Confidentiality of Agreement. Executive agrees not to disclose the underlying facts that led  up to this Agreement or the terms, amount, or existence of this Agreement or the benefits Executive  is receiving under this Agreement to anyone other than a member of Executive's immediate family,  attorney, or other professional advisor and, even as to such a person, only if the person agrees to  honor this confidentiality requirement. Such a person's violation of this confidentiality requirement  will be treated as a violation of this Agreement by Executive. This Paragraph 8 does not prohibit  Executive from disclosing the terms, amount, or existence of this Agreement to the extent necessary  legally to enforce this Agreement. Anything herein to the contrary notwithstanding, Executive shall  not be restricted from disclosing information  that has been filed by the Company with the Securities  and Exchange Commission and is publicly available or that is required to be disclosed by law, court  order, other valid and appropriate legal process, or a valid request by a Government Agency.    9. Final Agreement. This Agreement contains the entire agreement between the Company  and Executive with respect to the subject matter hereof, and supersedes all prior agreements between  the Parties, except as set forth in Paragraph 7 above. The Parties agree that this Agreement may  not be modified except  





 






26              by a written document signed by both Parties. The Parties agree that this Agreement may be  executed  in one or more counterparts, each of which will be deemed to be an original copy of  this Agreement and all of which, when taken together, will be deemed to constitute one and  the same agreement.    I0.       Governing Law.  This Agreement shall be governed by and construed in accordance  with the laws of the state of Tennessee without giving effect to its conflict oflaw principles.    11. Waiver. The failure of either party to enforce any of the provisions of this Agreement  shall in no way be construed to be a waiver of any such provision.   Any waiver of any provision  of this Agreement must be in a writing signed by the party making such waiver. No waiver of  any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.    12. No Reemployment. Executive agrees that by signing this Agreement, Executive  relinquishes any right to employment or reemployment with the Company or any of the  Releasees. Executive agrees that Executive will not seek, apply for, accept, or otherwise  pursue employment with the Company or any of the Releasees, and acknowledges that if  Executive reapplies for or seeks employment with the Company or any of the Releasees, the  Company's or any of the Releasees' refusal to hire Executive  based on this Paragraph 12 shall  provide a complete defense to any claims arising from Executive's attempt to obtain  employment.    The Parties hereby signify their agreement to these terms by their signatures below.    EXECUTIVE        Wilburn ("Wib") J. Evans  Date:      FB FINANCIAL CORPORATION        Name:  Title:  Date:      FIRSTBANK        Name:  Title:  Date: