EXHIBIT 10.22
EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of January 1, 1999,
between Resource Bank ("Resource"), and X. X. Xxxxx, Xx. ("Employee").
WHEREAS, Resource wishes to employ Employee to serve as its President
and Chief Operating Officer, and Employee is willing to accept such employment
in accordance with the terms of this Agreement; and
WHEREAS, Employee recognizes the importance to Resource and to the
public of maintaining the high standards and quality associated with Resource's
name and reputation, and is willing to maintain such high standards and quality;
NOW, THEREFORE, it is agreed as follows:
(1) TERM OF EMPLOYMENT: Subject to the provisions of this Agreement,
Resource will employ Employee as its President and Chief Operating
Officer for an initial term of five (5) years, beginning on January 1,
1999 and expiring on December 31, 2003 ("Initial Term"). Not less than
six (6) months prior to the expiration of the Initial Term, Resource's
Board of Directors (the "Resource Board of Directors") shall conduct
and complete a review of Employee's performance.
1.1 If the Resource Board of Directors determines upon such review
that Employee has performed in accordance with Resource's
performance criteria, no further action will be necessary, and
Resource shall employ Employee for an additional two-year
period under the terms herein. Thereafter, this Agreement
shall automatically renew for successive two-year periods
unless either party gives three (3) months written notice
prior to the expiration of any two-year term.
1.2 If the Resource Board of Directors determines upon such review
that Employee has not performed in accordance with Resource's
performance criteria, it shall so notify Employee in writing
at least three (3) months prior to the expiration of the
Initial Term hereof that this Agreement will not be renewed
("Notice of Non-Renewal"), and this Agreement shall expire and
the employment created herein shall end at the conclusion of
the Initial Term. Employee shall also receive three additional
month's regular base salary following expiration pursuant to
Resource's regular pay schedule.
1.3 The regular base salary payable both prior to and following
expiration as provided in subparagraph 1.2 shall not be paid
if Employee competes with Resource as that term is used in
subparagraphs 7.2 and 7.3 hereof.
1.4 Resource, in its sole discretion, shall have the option but
not the obligation of relieving Employee of actually
performing any services following the giving of a Notice of
Non-Renewal. Employee shall nonetheless be paid as provided in
subparagraph 1.2 provided he neither seeks or accepts
employment in competition with Resource as provided in
subparagraph 1.3 nor breaches any other provision hereof.
(2) DUTIES: During the period of employment hereunder, Employee will
devote his best efforts and substantially his full time to the business
and affairs of Resource, perform such services not inconsistent with
his position as are designated by the Resource Board of Directors, and
use his best efforts to promote the interest of Resource. Employee
pledges that during the term of this Agreement,
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Employee shall not, directly or indirectly, engage in any business
that could detract from Employee's ability to apply his best efforts to
the performance of his duties hereunder. Employee further agrees to
comply with all rules, regulations and policies established or issued
by Resource.
(3) COMPENSATION: Resource will pay Employee a regular base salary
commensurate with his position and performance, such salary to be
determined from time to time by the Resource Board of Directors, but to
be not less than $200,000 upon the initiation of this Agreement. Such
salary will be payable in periodic installments on the same basis as
that of other employees of Resource who hold executive positions. In
addition, Employee will be eligible to participate in Resource's Bonus
Program as determined from time to time by the Resource Board of
Directors.
(4) BENEFITS: Employee will participate in the various employee benefit,
disability and retirement plans provided for similarly situated
employees according to the terms and conditions of those plans, as
determined by the Resource Board of Directors. During each full year of
employment, Employee shall have five weeks paid vacation. During
Employee's employment with Resource, Employee will be provided with an
automobile allowance in the amount of $500.00 per month. Resource
reserves the right to modify, eliminate, or add to any of the foregoing
benefits as it deems appropriate.
(5) DEATH: If Employee should die during the term of this Agreement,
Resource will, in lieu of payments due under other provisions of this
Agreement, pay to Employee's estate for a period of 3 months,
Employee's regular base salary at the time of the Employee's death plus
any previously accrued and unpaid compensation. Thereafter, Resource
will have no further obligation to Employee or his estate under this
Agreement.
(6) DISABILITY: In the event that Employee, by reason of physical or
mental incapacity or disability ("Disability"), is unable, with or
without reasonable accommodation, to perform his duties and
responsibilities under this Agreement, then Resource will pay to
Employee his regular base salary for a six (6) month period following
the date on which the Disability first begins, after which time it is
intended that the payments under the disability insurance maintained by
Resource for Employee will be in effect. Thereafter, Resource will have
no obligation to pay Employee any compensation under this Agreement;
provided, however, that for a period of one (1) year following the date
the Disability first begins, Employee shall have the right to return to
employment under this Agreement if Employee, with or without reasonable
accommodation, is again able to fully perform his duties. Upon such a
return to employment, Employee shall work as mutually agreed upon by
Resource and Employee, and Employee shall receive the same compensation
and benefits as set forth in this Agreement, subject to appropriate
proration of compensation if Employee works less than the same schedule
he had previously worked.
(7) TERMINATION WITHOUT CAUSE; SEVERANCE PAY:
7.1 Resource may terminate Employee's employment immediately and
without cause. However, if Resource terminates employee's
employment pursuant to this Section 7.1, Resource shall pay to
Employee his regular base salary payable in periodic
installments on the same schedule as other executive employees
of Resource through the lesser of (i) the remainder of the
Initial Term of this Agreement or (ii) a period of thirty-six
(36) months following the date on which employment is
terminated ("Severance Pay"). Notwithstanding the foregoing,
in the event Employee elects to compete with Resource or any
of its subsidiaries as described below, Resource's obligation
to pay the Severance Pay shall terminate immediately.
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7.2 Employee agrees that in the event he competes, directly or
indirectly, with Resource or any of its subsidiaries within a
30-mile radius of any Resource office, or any of its
subsidiaries' offices, that exist on the date of such
termination he will forfeit any remaining Severance Pay from
the first date of such competition.
7.3 It is the specific intent of the parties that as long as
Employee is receiving Severance Pay, Employee shall be
restricted from competing directly or indirectly within a
thirty mile radius of any segment of Resource's or its
subsidiaries' business in which Employee engaged prior to the
termination of employment and from any segment of Resource's
and its subsidiaries' business, about which Employee acquired
proprietary or confidential information, during the course of
his employment. Resource's and its subsidiaries' business
shall mean the business of banking and mortgage lending.
Employee agrees that competition shall include engaging in
competitive activity, either as an individual, as a partner,
as a joint venturer with any other person or entity, or as an
employee, agent, or representative of any other person or
entity, or otherwise being associated in a competitive
capacity with any business entity which directly or indirectly
competes with Resource or any of its subsidiaries. Employee
further agrees that for as long as he receives severance pay,
he will not induce or attempt to induce any of the employees
of Resource or its affiliates to terminate their agreement.
7.4 Resource and Employee have examined in detail this paragraph 7
and agree that the restraint imposed upon Employee is
reasonable in light of the legitimate interests of Employer,
and it is not unduly harsh upon Employee's ability to earn a
livelihood.
7.5 Notwithstanding any provision of this Agreement to the
contrary, any payments made to Employee pursuant to this
Agreement, or otherwise, are subject to and conditional upon
their compliance with 12 U.S.C. ss. 1828(k) and any
regulations promulgated thereunder.
(8) TERMINATION FOR CAUSE: The employee's employment may be terminated at
any time by Resource for "cause." As used in this Agreement, the term
cause may mean personal dishonesty; gross neglect related to
employment; incompetence; willful misconduct; breach of loyalty or
fiduciary duty to Employer; intentional failure to perform assigned or
agreed upon duties; willful violation of any law, rule, or regulation
(other than traffic violations or similar offenses); or material breach
of any provision of this Agreement. Termination by Resource for cause
shall be determined by the vote of at least 51% of all of the members
of the Resource Board of Directors. If the employment is so terminated,
Employee will be entitled to receive any regular salary earned and
employee benefits accrued as of the date of such termination, but
Resource will have no further obligation to Employee hereunder from and
after such date.
(9) TERMINATION BY EMPLOYEE: Employee may resign from the employment of
Resource at any time upon ninety (90) days prior written notice. Upon
such resignation, Employee shall have no rights to any further
compensation or benefits after the ninety (90) day notice period has
expired. Resource reserves the option but not the obligation to relieve
Employee from performance of work during this period, but absent
subsequent breach hereof, Resource shall be obligated to pay Employee
the Employee's regular base salary for the entire 90-day notice period.
(10) CHANGE OF CONTROL: If there shall occur a "Change of Control of
Resource" as defined below, the employee may be assigned such other
duties, responsibilities and compensation as would be reasonably
equivalent under the circumstances and acceptable to the Employee in
his reasonable discretion. Upon such occurrence, if the Employee shall
not be given such reasonably equivalent duties, responsibilities and
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compensation, he may be terminated or he may resign; and, in either
such case, Employee shall receive in lieu of any payments pursuant to
paragraph 7, a one-time payment of 2.99 times the average of the last
three (3) years' regular base salary, or if employed less than three
years, a one-time payment of 2.99 times Employee's regular base salary
in effect when the change of control occurs. As used in this paragraph
10, a Change of Control of Resource shall be deemed to have occurred if
any of the following occur:
10.1 Any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934) is or becomes
the beneficial owner, directly or indirectly, of securities of
Resource representing twenty-five percent (25%) or more of the
combined voting power of Resource's then outstanding
securities; or
10.2 During any period of two consecutive calendar years,
individuals who at the beginning of such period constitute the
Resource Board of Directors cease for any reason to constitute
a majority thereof unless the election by Resource's
Shareholders of each new director was approved by a vote of at
least two-thirds of the Resource directors then still in
office who were directors at the beginning of the period.
10.3 The approval by Resource's shareholders of the merger or
consolidation of Resource with any other corporation or
business organization, the sale of substantially all of the
assets of Resource or the liquidation or dissolution of
Resource, unless, in the case of a merger or consolidation,
the directors of Resource in office immediately prior to such
merger or consolidation will constitute at least two-thirds of
the directors of the surviving corporation or business
organization of such merger or consolidation and any parent
(as such term is defined in Rule 12b-2 under the Securities
Exchange Act of 1934) of such corporation or business
organization.
(11) REQUIRED PROVISIONS:
11.1 If Employee is suspended and/or temporarily prohibited from
participating in the conduct of Resource's affairs by a notice
served under the Federal Deposit Insurance Act, Resource's
obligations under this Agreement shall be suspended as of the
date of service. If the charges in the notice are dismissed,
Resource may, in its discretion, (i) pay Employee all or part
of the compensation withheld while its obligations under the
Agreement were suspended, and (ii) reinstate (in whole or in
part) any of its obligations which were suspended.
11.2 If Employee is removed and/or permanently prohibited from
participating in the conduct of Resource's affairs by an order
issued under the Federal Deposit Insurance Act, all
obligations of Resource under this Agreement shall terminate
as of the effective date of the order, but the Employee's
vested rights shall not be affected.
11.3 If Resource is in default as defined in the Federal Deposit
Insurance Act, all obligations under this Agreement shall
terminate as of the date of default, but the operation of this
subparagraph 11.3 shall not affect any of Employee's vested
rights.
(12) NONDISCLOSURE:
12.1 Employee agrees to hold and safeguard any information about
Resource and its subsidiaries gained by Employee during the
course of Employee's employment. Employee shall not, without
the prior written consent of Resource, disclose or make
available to anyone for use outside Resource's and its
subsidiaries' organization at any time, either during his
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employment or subsequent to any termination of his employment,
however such termination is effected, whether by Employee or
Resource, with or without cause, or expiration or nonrenewal
of this Agreement, any information about Resource and its
subsidiaries or its customers or suppliers, whether or not
such information was developed by Employee, except as required
in the performance of Employee's duties for Resource and its
subsidiaries.
12.2 Employee understands and agrees that any information about
Resource and its subsidiaries or Resource's and its
subsidiaries' customers is the property of Resource or its
subsidiaries and is essential to the protection of Resource's
and its subsidiaries' goodwill and to the maintenance of
Resource's and it subsidiaries' competitive position and
accordingly should be kept secret. Such information shall
include, but not be limited to, information containing
Resource's and its subsidiaries' promotional plans and
strategies, pricing strategies, customers and prospective
customers, customer lists, identity of key personnel in the
employ of customers and prospective customers, computer
programs, system documentation, manuals, ideas, or any other
records or information belonging to Resource and its
subsidiaries or relating to Resource's and its subsidiaries'
business.
(13) NON-SOLICITATION OF EMPLOYEES: Employee agrees that during his
employment hereunder and for a period of one year following termination
of Employee's employment, whether such termination is voluntary or
involuntary, effected by Resource or by Employee, regardless of cause,
Employee shall not, directly or indirectly, hire, solicit or induce or
attempt to hire, solicit or induce, any employee of Resource to become
employed by Employee or any other person or entity or to perform
services for remuneration for Employee or any other person or entity
regardless of the structure or nature of any such remunerative
relationship. For purposes of this paragraph 13, an employee of
Resource shall mean any individual who was employed by Resource or any
of its subsidiaries at the time of Employee's termination or at any
time during the six-month period immediately preceding such
termination. This paragraph does not apply in the event of "Change of
Control of Resource" as defined in paragraph 10.
(14) ENTIRE AGREEMENT: This Agreement and your offer letter dated November
9, 1998 supersede any and all other agreements, either oral or in
writing, between the parties hereto with respect to the employment of
Employee by Resource or any affiliate of Resource and contains all the
covenants and agreements between the parties with respect to such
employment. Each party to these Agreements acknowledges that no
representations, inducements, promises or agreements, orally or
otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement or promise not contained in this Agreement and your offer
letter dated November 9, 1998 will be valid or binding. Any
modification of these Agreements will be effective only if it is in
writing signed by the party to be charged.
(15) BINDING EFFECT: This Agreement will be binding upon and inure to the
benefit of each of the parties and their successors.
(16) LAW GOVERNING AGREEMENT: This Agreement will be governed and
construed in accordance with the laws of the Commonwealth of Virginia.
(17) CONFLICT WITH REGULATIONS: The requirements of 12 C.F.R. ss.
563.39(b) (the "Employment Agreement Regulations") shall be made part
of this Agreement and are incorporated by reference. If any provision
of this Agreement conflicts with the Employment agreement Regulations,
the Employment Agreement Regulations shall govern.
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(18) PARTIAL INVALIDITY: If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable,
the remaining provisions will nevertheless continue in full force and
effect.
(19) SEVERABILITY: If any clause or provision of this Agreement is held to
be illegal, invalid, or unenforceable under present or future laws
effective during the term hereof, then the remainder of this Agreement
shall not be affected thereby, and in lieu of each clause or provision
of this Agreement which is illegal, invalid or unenforceable, and
specifically including the restrictions on competition in paragraph 7,
there shall be added, as a part of this Agreement, a clause or
provision as similar in terms to such illegal, invalid or unenforceable
clause or provision as may be possible and as may be legal, valid, and
enforceable.
(20) NOTICES: Any notices to be given hereunder by either party to the
other may be effected either by personal delivery in writing or by
mail, registered or certified, postage prepaid, with return receipt
requested. Mailed notices will be addressed to the parties at the
addresses appearing herein, but each party may change his address by
written notice in accordance with this paragraph. Notices delivered
personally will be deemed communicated as of actual receipt; mailed
notices will be deemed communicated as of five (5) days after mailing.
TO: Resource Bank
Attention: Xxxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx 00000
TO: X. X. Xxxxx, Xx.
0000 Xxxx Xxxxxx Xxxx
Xxxxxxxx Xxxxx, XX 00000
(21) COUNTERPARTS: This Agreement may be executed in counterparts,
together which shall constitute one and the same instrument.
IN WITNESS WHEREOF, Resource Bank has caused this Agreement to be
executed in its name and behalf by its proper officers, thereunto duly
authorized, and Employee has set his hand as of the date first above written.
EMPLOYEE'S NAME RESOURCE BANK
/s/ X.X. Xxxxx, Xx. By:/s/ Xxxxxxxx X. Xxxxx
------------------- ---------------------
Signature Xxxxxxxx X. Xxxxx
X. X. Xxxxx, Xx. Its: Chief Executive Officer
------------------- ------------------------
Printed Name
Date: __________________________ Date __________________________
