Exhibit 10(b)
EMPLOYMENT AGREEMENT
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AGREEMENT made as of this 31st day of December, 2001, between XXXXX
XXXXXX BANCORP, INC. (the "Corporation"), a corporation organized and existing
under the laws of the Commonwealth of Virginia, with principal offices at 0000
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, XXXXX XXXXXX BANK, (the "Bank"), a
Virginia commercial bank wholly-owned by the Corporation, and XXXXXXX X. XXXXXXX
("Xxxxxxx"), also referred to below, collectively, as the "parties" and,
individually, as a "party."
WITNESSETH THAT, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. PERIOD OF EMPLOYMENT. The Bank shall continue to employ Xxxxxxx as
its Executive Vice President/Chief Operating Officer through December 31, 2003.
Xxxxxxx agrees to serve the :the Bank in such capacity. As the Executive Vice
President/Chief Operating Officer, Xxxxxxx'x duties shall be those normally
undertaken by such officers of banks similar to the Bank in nature and size.
2. COMMITMENT OF EXECUTIVE. So long as this Agreement shall continue in
effect, Xxxxxxx shall faithfu1ly and diligently discharge his duties and
responsibilities under this Agreement, shall use his best efforts to implement
the policies established by the Board of Directors of the Bank, and shall devote
all of his business time and attention to the affairs of the Bank, except as
otherwise agreed by the Board of Directors.
3. COMPENSATION.
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(a) The Bank shall compensate Xxxxxxx at the rate of One Hundred
Twenty-Five Thousand Dollars ($125,000.00) per year through December 31, 2002.
Thereafter; Xxxxxxx shall be compensated at such rate, no less than the prior
year's rate, as may be determined in the sole discretion of the Bank and its
Board of Directors.
(b) Salary as provided above will be payable less appropriate
deductions as required by law and shall be paid in appropriate installments to
conform with the Bank's regular payroll dates.
(c) During the term of this Agreement, the Bank may pay Xxxxxxx a bonus
after the end of a calendar year. The payment of a bonus, if any, and the amount
and term thereof shall be in the sole discretion of the Bank and its Board of
Directors.
4. OTHER BENEFITS.
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(a) During the term of this Agreement, the Bank shall provide Xxxxxxx
with major medical health insurance as is provided to officers of the Bank.
(b) During the term of this Agreement, the Bank shall pay an automobile
expense allowance in the amount of $500.00 per month for fuel, maintenance,
taxes and replacement parts and consumables, repairs and all other costs
incidental to the use or operation of Xxxxxxx'x automobile.
(c) Xxxxxxx shall be reimbursed for reasonable traveling and other
expenses incurred or paid by Xxxxxxx in accordance with the Bank's policy and in
connection with the performance of his services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as may from time to time be requested.
(d) In the event of Xxxxxxx'x disability to perform his duties due to
illness or incapacity, the Bank shall continue his full base salary for a period
of three (3) months from the commencement of said disability. Additionally, for
the subsequent three (3) month period, the Bank shall pay to Xxxxxxx that
portion of his base salary such that the total amount received by Xxxxxxx
pursuant to this sentence plus the amount received pursuant to the Bank's income
disability
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policy equals his full base salary for such subsequent three (3) month period.
Thereafter, Xxxxxxx shall only be entitled to receive payments pursuant to the
Bank's income disability policy, except without regard to the $5,000.00/month
ceiling limitation.
(e) Xxxxxxx shall be entitled to participate in and enjoy according to
Bank policy any and all pension, retirement, profit-sharing, stock purchase,
stock option, life insurance, accident insurance, medical reimbursement, health
insurance or hospitalization plan, cafeteria plan, deferred compensation plan,
vacations, holidays and other leave and any other fringe benefits in which other
employees or executives of the Bank are eligible to participate.
(f) The Corporation has granted Xxxxxxx the option to acquire up to Ten
Thousand (10,000) shares of the Corporation's common stock. It is intended that
said options be "non-qualified stock options" within the terms of :the Xxxxx
Xxxxxx Bank Stock Option Plan and, on exercise, the Corporation shall reimburse
Xxxxxxx for any income taxes payable by him as an incident of such exercise up
to the amount of the tax benefit received by the Corporation, upon the exercise
by Xxxxxxx of any of said options. For purposes of this subsection (f), the tax
benefit, if any, received by the Corporation upon the exercise by Xxxxxxx of
said options shall be computed with reference only to the operations of the Bank
(and any companies wholly-owned by the Bank) and without considering the tax
effects to the Corporation of any other banking or other entities in which the
Corporation may then have an interest. Additionally, if the Corporation seeks or
is required to register any of its securities under the Securities Act of 1933,
as amended, or file reports under the Securities Exchange Act of 1934, as
amended, with the U.S. Securities and Exchange Commission, it shall, at its
expense, cause to be registered, without restrictions thereon (except as may be
required by law), all shares of stock acquired by Xxxxxxx, upon his exercise of
the said non-qualified options with respect thereto.
5. TERM AND TERMINATION.
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(a) This Agreement shall be effective as of the date first above
written and shall remain in effect through December 31, 2003.
(b) During the term of this Agreement, this Agreement shall be
terminated:
(1) Upon the death of Xxxxxxx; or
(2) In the event of the permanent disability of Xxxxxxx, which shall
mean a disability due to illness or incapacity resulting in Xxxxxxx'x inability
to perform his duties for a period of six (6) consecutive months, or for an
aggregate period of nine (9) months, or more, in any twelve (l2) month period
during the term of this Agreement; or
(3) In the event of Xxxxxxx'x "dismissal for
just cause", which shall mean a termination
of Xxxxxxx'x employment because of Xxxxxxx'x
personal dishonesty, willful misconduct,
breach of fiduciary duty involving personal
profit, intentional failure to perform
stated duties, willful violation of any law,
rule or regulation (other than traffic
violations or similar offenses) or final
cease-and-desist order, or other acts which
in the good faith opinion of the Board of
Directors of the Bank has a material adverse
effect on the interests of the Bank.
(c) In the event Xxxxxxx'x employment is terminated by the Bank in
breach of this Agreement on or before December 31, 2003, or in the event Xxxxxxx
leaves his employment under this Agreement as a result of the Bank's breach of
this Agreement, then, as liquidated damages, Xxxxxxx shall be (i) paid for a
period equal to the greater of twelve (12) months or the remaining unexpired
term of this Agreement, at the full amount of base salary, bonus and other
benefits which he was receiving at the time of such termination, as provided in
this Agreement (said sum to be paid, at the option of Xxxxxxx, in either one
lump sum within thirty (30) days of such termination, or in periodic equal
monthly payments over the following twelve (12) month period), and (ii) receive
executive out placement assistance from an organization of Xxxxxxx'x choice and
the cost therefor, up to an amount equal to eighteen percent (18%) of his base
salary at the time of such termination, shall be borne by the Bank. In the event
the monies payable to or for Xxxxxxx pursuant to the foregoing provisions of the
subparagraph (c) result in a federal excise tax obligation on Xxxxxxx with
respect to such payments, then, at Xxxxxxx'x discretion, the total amount of
such payments shall be reduced to the maximum amount that may be paid to or for
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Xxxxxxx without causing him to incur any such federal excise tax obligation
thereon.
6. CHANGE IN CONTROL.
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(a) Notwithstanding any provision herein to the contrary, in the event of
the termination of Xxxxxxx'x employment under this Agreement for "Good Reason"
in connection with, or within twelve (12) six months after, any Change in
Control of the Bank, Xxxxxxx shall be paid for a period equal to twenty-four
(24) months at the full amount of salary and other benefits which he was
receiving at the time of the termination, as provided in this Agreement. Said
sum shall be paid, at the option of Xxxxxxx, in either one lump sum within
thirty (30) days of such termination, or in periodic payments over the
twenty-four (24) months, and such payments shall be in lieu of any other future
payments which Xxxxxxx would be otherwise entitled to receive under Paragraphs 3
and 4 (other than 4(b)) of this Agreement.
(b) The term "Change in Control" shall mean anyone of the following events
occurring during the term of this Agreement and subsequent to December 31, 2001:
(1) the acquisition of ownership of, holding or power to vote more than 51% of
the Bank's voting stock; (2) the acquisition of the power to control the
election of a majority of the Bank's directors; (3) the exercise of a
controlling influence over the management or policies of the Bank by any person
or by persons acting as a "group" (within the meaning of Section 13(d) of the
Securities Exchange Act of 1934); or (4) the failure of Continuing Directors to
constitute at least two-thirds of the Board during any period of two (2)
consecutive years. For purposes of this Agreement, "Continuing Directors" shall
include only those individuals who were members of the Board on December 31,
2001 and those other individuals whose election or nomination for election as a
member of the Board was approved by a vote of at least two-thirds of the
Continuing Directors then in office. For purposes of this subparagraph only, the
term "person" refers to an individual or a corporation, partnership, trust,
association, joint venture, pool, syndicate, sole proprietorship, unincorporated
organization or any other form of entity; not specifically listed herein.
(c) Termination of Xxxxxxx'x employment for "Good Reason" shall mean
termination, initiated by Xxxxxxx (other than a termination of employment as a
result of a breach by the Bank of this Agreement, subject to the provisions of
subparagraph 5(c), or a breach of this Agreement by Xxxxxxx) as a result of any
of the following:
(i) A material change in Xxxxxxx'x status or position with the Bank or a
material change in Xxxxxxx'x duties or responsibilities which is inconsistent
with his status or position, or any removal of Xxxxxxx from, or any failure to
reappoint or reelect Xxxxxxx to such position, except in connection with a
dismissal for just cause or disability or as a result of Xxxxxxx'x death.
(ii) A reduction by the Bank in Xxxxxxx'x base salary as in effect
immediately prior to the change in control.
(iii) The failure by the Bank to continue in effect any Plan (as
hereinafter defined) in which Xxxxxxx is participating at the time of the change
in control of the Bank (or Plans providing at least substantially similar
benefits) other than as a result of the normal expiration of any such Plan in
accordance with its terms as in effect at the time of the change in control, or
the taking of any action. or the failure to act, by the Bank which would
adversely affect Xxxxxxx'x continued participation in any of such Plans on at
least as favorable a basis to Xxxxxxx as is the case on the date of the change
in control.
(iv) The Bank's requiring Xxxxxxx to be based more than twenty-five (25)
miles from where his office is located immediately prior to the change in
control except for required travel on the Bank's business to an extent
substantially consistent with the business travel obligations which he undertook
on behalf of the Bank prior to the change in control.
(v) Any purported termination by the Bank of Xxxxxxx'x employment not
satisfying the requirements of this Agreement;
(vi) Any refusal by the Bank to continue to allow Xxxxxxx to attend to
matters or engage in activities not directly related to the business of the
Bank which, prior to the change in control, Xxxxxxx was permitted by the Board
to attend or to engage in.
For purposes of this subsection, "Plan" shall mean any
compensation plan, such as an incentive or stock
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option plan, or any employee benefit plan, such as a thrift, pension,
profit sharing, medical disability, accident, life insurance plan or
policy, or any other plan, program or policy of the Bank intended to
benefit employees.
7. CONFIDENTIALITY. Xxxxxxx agrees that he will regard and preserve as
confidential all proprietary information pertaining to the business of the Bank,
or its customers, subsidiaries or affiliates that may be obtained by him during
the course of his employment and thereafter and, to the extent that such
information does not become public knowledge, that he will not, without written
authority from the Bank, directly or indirectly, disclose to others during his
employment or thereafter, any of such proprietary information obtained by him
while employed hereunder. The above shall not be construed as restricting
Xxxxxxx from disclosing such information to employees of the Bank who reasonably
require access to such information in order to discharge their duties.
8. BINDING EFFECT. This Agreement shall be binding upon and shall inure
to the benefit of the parties, the successors and assigns of the Bank (the term
"Bank" as used herein shall include such successors and assigns), and the heirs,
executors administrators, guardians and other personal representatives of
Xxxxxxx.
9. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties relating to the subject matter hereof and supersedes and cancels all
prior written and oral agreements and understandings between the parties
relating to the subject matter of this Agreement, which are not set forth
herein. No amendment or modification of this Agreement shall be valid unless
made in writing and signed by the parties hereto. No term or condition of this
Agreement shall be deemed to have been waived except by written instrument of
the party charged with such waiver.
10. GOVERNING LAW. This Agreement will be construed in accordance with
the laws of the Commonwealth of Virginia.
11. NOTICES. All notices to be sent to either party by the other party
hereto pursuant to this Agreement shall be sent by registered mail to the
following respective addresses:
(a) Corporation: If to the Corporation, addressed to it at:
0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxx X. Xxxxx, Esquire
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Bank: If to the Bank, addressed to it at:
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0000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a required copy to:
Xxxxx X. Xxxxx, Esquire
00000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(b) Xxxxxxx. If to Xxxxxxx, addressed to him at:
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000 X. Xxx Xxxxxx, #000
Xxxxxxxxxx, Xxxxxxxxx 00000
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IN WITNESS WHEREOF, the parties have executed this Employment Agreement
as of the day and year first above written.
XXXXX XXXXXX BANCORP , INC.
ATTEST a Virginia corporation
______________________________ By:________________________
Xxxxx X. Xxxxx
Chairman
XXXXX XXXXXX BANK
ATTEST a Virginia corporation
______________________________ By:________________________
Xxxx X. Xxxxxxx
President/CEO
______________________________ ___________________________
Witness Xxxxxxx X. Xxxxxxx
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