Exhibit 10.1
REVISED
EMPLOYMENT AGREEMENT
THIS REVISED EMPLOYMENT AGREEMENT ("AGREEMENT"), made this 1st day of
January, 1997, by and between THE MIDDLEBURG BANK ("BANK") and XXXXXX X. XXXXXX,
President and Chief Executive Officer ("PRESIDENT").
WHEREAS, it is the desire of the BANK to have the benefit of
PRESIDENT'S loyalty, service and counsel; and
WHEREAS, the PRESIDENT wishes to continue in the employ of the as
President; and
WHEREAS, the BANK desires to continue to employ the PRESIDENT in his
present capacity; and
WHEREAS, PRESIDENT possesses certain valuable knowledge, professional
skills and expertise essential to the continued viability of the business of the
BANK; and
WHEREAS, the BANK desires to continue to utilize the aforesaid
knowledge, professional skills and expertise of the PRESIDENT in the conduct of
the business of the BANK; and
WHEREAS, the BANK and PRESIDENT desire to continue to set forth, in
writing, the terms and conditions of their agreements and understandings,
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
legally to be bound, agree as follows:
1. Employment: The BANK agrees to continue to employ the
PRESIDENT of the Bank and the PRESIDENT agrees to serve the BANK upon the terms
and conditions herein provided. The PRESIDENT agrees to perform such managerial
duties and responsibilities as shall be assigned to him by the Board of
Directors of the BANK. The PRESIDENT shall devote his full time and attention to
the discharge of the duties undertaken by him hereunder.
2. Term of Employment: The continued employment of the PRESIDENT
shall commence on January 1, 1997, and continue to December 31, 2001, unless
sooner terminated in accordance with the provisions of Article 5. After December
31, 1999, the Agreement and all its terms and provisions shall be automatically
extended from year-to-year, unless terminated in accordance with the provisions
of Article 5.
3. Compensation: As compensation for the services to be rendered
by the PRESIDENT of the BANK under this Agreement, the Executive Committee has
set a current base annual salary of One Hundred Eighty-Four Thousand Forty-Six
Dollars ($184,046) for the year 1997. The PRESIDENT may receive incentive or
bonus compensation in the amounts determined by the Executive Committee of the
BANK in accordance with performance objectives established by the Board of
Directors. For the year 1996, the Executive Committee has also provided the
PRESIDENT with an incentive payment of Twenty Thousand Dollars ($20,000) for his
outstanding services to the BANK in 1996, payable in January, 1997.
4. Additional Benefits:
(a) In addition to all the benefits which are provided to all
other employees of the BANK, PRESIDENT shall be eligible for participation in
annual salary increases and any additional plans, programs or forms of
compensation or benefits that the Board of Directors of the BANK might
hereinafter provide to the employees of the BANK, to include but not be limited
to, major medical and dental insurance, (membership in the Middleburg Tennis
Club and in a local golf club).
(b) In the event of the physical or mental disability of the
PRESIDENT by reason of which the PRESIDENT is unable to perform the essential
duties of his employment hereunder, the BANK will continue to pay or provide to
the PRESIDENT the compensation and benefits provided for hereunder for the first
six (6) months of such disability. If, however, the disability shall continue
beyond such six (6) month period, the BANK may, at its election, terminate
PRESIDENT'S employment under this agreement, in which case, PRESIDENT shall
receive the disability benefits payable under the BANK's disability plan through
the Virginia Bankers Association, such plan providing for coverage to commence
six (6) months after the occurrence of such disability.
(c) The BANK shall provide to PRESIDENT an automobile and
payment of all related automobile expenses.
5. Termination:
(a) For Cause. Notwithstanding any other provision hereof, the
BANK may terminate PRESIDENT's employment under this Agreement for cause. The
termination shall be evidenced by written notice thereof to the PRESIDENT, which
shall specify the cause of termination. For purposes hereof, the term "cause"
shall mean failure of the PRESIDENT to perform his duties under this Agreement
for a period of six (6) months or for unlawful business conduct; theft;
committing of a felony; or a material breach of this Agreement. The term "cause"
shall also include the failure of PRESIDENT for any reason, within ten (10) days
after receipt by PRESIDENT of written notice thereof from the Board of Directors
of the BANK to correct, cease, or otherwise alter any action or omission that
materially or adversely affects the BANK's profits or operations.
(b) Other:
(1) If PRESIDENT resigns or voluntarily leaves the
employ of the BANK, upon giving the BANK ninety (90) days advance notice, the
BANK's obligations to PRESIDENT under this Agreement shall terminate and the
BANK shall have no further liability to PRESIDENT under this Agreement;
provided, however, if PRESIDENT resigns or voluntarily leaves the employ of the
BANK because of the BANK's failure to comply with any substantial term of this
Agreement, then PRESIDENT shall be entitled to the compensation and benefits set
forth in Paragraphs 3 and 4 hereof for the period of time as set forth in
paragraph 5(b)(2) hereof.
(2) The BANK may at any time, elect to terminate
its obligations hereunder without "cause" and remove PRESIDENT from employment
on thirty (30) days written notice, if the Bank elects to terminate PRESIDENT's
employment without "cause", then PRESIDENT shall be entitled to receive the
compensation and benefits due under Paragraphs 3 and 4 under this Agreement for
a period of time which is the greater of (i) the remaining term of employment
provided for in this Agreement, or (ii) thirty-six (36) months, commencing on
the date of termination.
(c) Change of Control of BANK: This Agreement may be terminated
by PRESIDENT in the event of a change of control of the BANK, upon the following
terms:
(1) "Change of Control" defined as the date upon which
any of the following occurs: (i) notice filed with respect to change of
ownership of the BANK with the Federal Reserve Bank of Richmond, Virginia and
with the State Corporation Commission of Virginia; (ii) a change of ownership of
the BANK occurs which must be reported to the Securities and Exchange Commission
as a change of control; (iii) the merger or consolidation of BANK with, or into,
another corporation; or (iv) the sale, conveyance or other transfer of
substantially all of the assets of BANK. However, any transaction under (iii) or
(iv) shall not be considered a change in control if such action constitutes a
mere reorganization of the BANK or creation of a Bank Holding Company. In the
event that there is a transaction under a plan which involves a change in
control of the BANK, then the date of change in control shall be the date that
the last step in the plan causes a change in control of the entity last
undergoing a change in control.
(2) If, upon a change in control, PRESIDENT is
offered the same employment position at the same location as he occupied
immediately prior to the change in control, with no less than the same
compensation and benefits, then the PRESIDENT, may not terminate this Agreement,
pursuant to the provisions for this paragraph 5(c), which shall then continue in
full force and effect.
(3) If, upon a change in control, the PRESIDENT is not
offered the same employment position at the same location as he occupied
immediately prior to the change in control, with no less than the same
compensation and benefits, then the PRESIDENT may terminate this Agreement
pursuant to the provisions of this paragraph 5(c).
(4) If, upon a change in control, PRESIDENT is offered
and accepts a senior level position in a location acceptable to him,
nevertheless PRESIDENT may terminate this Agreement, at his sole option and at
any time within ninety (90) days of the change in control, by giving written
notice and the date of termination shall be the date of the notice. Such a
termination by PRESIDENT shall be a termination because of change in control and
not a termination under Paragraph 5 hereof.
(5) If this Agreement is terminated by PRESIDENT because
of change of control, his compensation and benefits shall continue for the
remainder of the term of this Agreement, or for a period of thirty-six (36)
months from the date of change in control, whichever is greater. At the option
of PRESIDENT, such compensation and benefits shall be paid in either a lump sum
or in monthly payments. In the event the PRESIDENT terminates this Agreement
because of change of control, the PRESIDENT shall not be obligated to mitigate
his damages by accepting other employment. Should the PRESIDENT seek other
employment, it should not be in conflict with the provisions of Paragraph 6,
below.
6. Competition Covenant: Upon termination of this Agreement for
any reason, PRESIDENT covenants he will not directly or indirectly engage in
competition with BANK, whether through employment by a bank or other financial
services business or in any other manner. The restriction of this paragraph
shall be limited to the geographic area which is within seventy-five (75) miles
of BANK's principal place of business in Middleburg, Virginia; and shall expire
one (1) year after termination of this Agreement or one (1) year after PRESIDENT
ceases to receive compensation and other benefits hereunder, whichever time is
longer.
7. Severability: The provisions of this Agreement, including
particularly but not solely the provisions of Paragraph 6, shall be deemed
severable, and the invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not affect the validity and enforceability of
the other provisions.
8. Miscellaneous: The Bank, by the signature of the Chairman
of the Executive Committee of the Board of Directors, hereby approves this
Revised Employment Agreement with the President dated January 1, 1997. This
Agreement shall be governed by the laws of the Commonwealth of Virginia except
to the extent national banking law may be controlling.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
THE MIDDLEBURG BANK
by: (SEAL)
-------------------------------
G. A. Xxxxxx, Jr., Chairman of the
Executive Committee of the Board of
Directors
------------------------------- (SEAL)
XXXXXX X. XXXXXX, President and Chief
Executive Officer of The Middleburg Bank
