Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT is made and entered into as of the first day
of October, 2002 by and between FIRST NATIONAL CORPORATION, a Virginia
corporation, hereinafter called the "Corporation", and XXXXX X. XXXXX
hereinafter called "Employee", and provides as follows:
RECITALS
WHEREAS, the Corporation is a bank holding company engaged in the
operation of a bank; and
WHEREAS, Employee has been involved in the management of the business
and affairs of the Corporation and, therefore, possesses managerial experience,
knowledge, skills and expertise in such type of business; and
WHEREAS, the continued employment of Employee by the Corporation is in
the best interests of the Corporation and Employee; and
WHEREAS, the parties have mutually agreed upon the terms and conditions
of Employee's continued employment by the Corporation as hereinafter set forth;
TERMS OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and of the
mutual promises and undertakings of the parties as hereinafter set forth, the
parties covenant and agree as follows:
Section 1. Employment. (a) Employee shall be employed as the President
and Chief Executive Officer of the Corporation and its wholly owned subsidiary,
First Bank. He shall perform such services for the Corporation and/or one or
more Affiliates as may be assigned to Employee by the Corporation from time to
time upon the terms and conditions hereinafter set forth.
(b) References in this Agreement to services rendered for the
Corporation and compensation and benefits payable or provided by the Corporation
shall include services rendered for and compensation and benefits payable or
provided by any Affiliate. References in this Agreement to the "Corporation"
also shall mean and refer to each Affiliate for which Employee performs
services. References in this Agreement to "Affiliate" shall mean any business
entity that, directly or indirectly, through one or more intermediaries, is
controlled by the Corporation.
(c) The parties recognize that the Board of Directors of the
Corporation shall manage the business affairs of the Corporation and that the
relationship between the Corporation and Employee shall be that of an employer
and an employee. The Board of Directors shall have the sole authority to set and
establish the hours of operation of the business and to set and establish
reasonable work schedules and standards applicable to Employee.
Section 2. Term. The term of this Agreement shall at all times be two
(2) years, which means that at the end of every day, the term of this Agreement
shall be extended for one day. With thirty (30) days notice, however, either
party may notify the other that the term of this Agreement shall no longer be
extended and that this Agreement will terminate two (2) years after the
effective date of such notice.
Section 3. Exclusive Service. Employee shall devote his best efforts
and full time to rendering services on behalf of the Corporation in furtherance
of its best interests. Employee shall comply with all policies, standards and
regulations of the Corporation now or hereafter promulgated, and shall perform
his duties under this Agreement to the best of his abilities and in accordance
with standards of conduct applicable to chief executive officers of banks.
Section 4. Salary. (a) As compensation while employed hereunder,
Employee, during his faithful performance of this Agreement, in whatever
capacity rendered, shall receive an annual base salary of $160,000 payable on
such terms and in such installments as the parties may from time to time
mutually agree upon. The Board of Directors, in its discretion, may increase
Employee's base salary during the term of this Agreement; provided, however,
that Employee's salary after being increased may not be decreased.
(b) The Corporation shall withhold state and federal income
taxes, social security taxes and such other payroll deductions as may from time
to time be required by law or agreed upon in writing by Employee and the
Corporation. The Corporation shall also withhold and remit to the proper party
any amounts agreed to in writing by the Corporation and Employee for
participation in any corporate sponsored benefit plans for which a contribution
is required.
(c) Except as otherwise expressly set forth hereunder, no
compensation shall be paid pursuant to this Agreement in respect of any month or
portion thereof subsequent to any termination of Employee's employment by the
Corporation.
Section 5. Corporate Benefit Plans. Employee shall be entitled to
participate in or become a participant in any employee benefit plan maintained
by the Corporation for which he is or will become eligible on such terms as the
Board of Directors may, in its discretion, establish, modify or otherwise
change.
Section 6. Bonuses. Employee shall receive only such bonuses as the
Board of Directors, in its discretion, decides to pay to Employee.
Section 7. Expense Account. (a) The Corporation shall reimburse
Employee for reasonable and customary business expenses incurred in the conduct
of the Corporation's business. Such expenses will include business meals,
out-of-town lodging and travel expenses. Employee agrees to timely submit
records and receipts of reimbursable items and agrees that the Corporation can
adopt reasonable rules and policies regarding such reimbursement. The
Corporation agrees to make prompt payment to Employee following receipt and
verification of such reports.
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(b) The Corporation will provide Employee a car allowance of
$1,000.00 per month.
Section 8. Personal and Sick Leave. Employee shall be entitled to the
same personal and sick leave as the Board of Directors may from time to time
designate for all full-time employees of the Corporation.
Section 9. Vacations. Employee shall be entitled to vacations in
accordance with policies the Board of Directors sets for all full time employees
of the Corporation and during which Employee's compensation hereunder shall
continue to be paid.
Section 10. Termination. (a) Notwithstanding the termination of
Employee's employment pursuant to any provision of this Agreement, the parties
shall be required to carry out any provisions of this Agreement which
contemplate performance by them subsequent to such termination. In addition, no
termination shall affect any liability or other obligation of either party which
shall have accrued prior to such termination, including, but not limited to, any
liability, loss or damage on account of breach. No termination of employment
shall terminate the obligation of the Corporation to make payments of any vested
benefits provided hereunder or the obligations of Employee under Sections 11, 12
and 13.
(b) Employee's employment hereunder may be terminated by
Employee upon thirty (30) days written notice to the Corporation or at any time
by mutual agreement in writing.
(c) This Agreement shall terminate upon death of Employee;
provided, however, that in such event the Corporation shall pay to the estate of
Employee the compensation including salary and accrued bonus, if any, which
otherwise would be payable to Employee through the end of the month in which his
death occurs.
(d)(1) The Corporation may terminate Employee's employment
other than for "Cause", as defined in Section 10(e), at any time upon written
notice to Employee, which termination shall be effective immediately. Employee
may resign thirty (30) days after notice to the Corporation for "Good Reason",
as hereafter defined.
(2) If the Corporation terminates the Employee's employment
without Cause or the Employee resigns for Good Reason, then in either event:
(i) The Employee shall be paid for the remainder of the then
current term of this Agreement, at such times as payment was theretofore made,
the salary required under Section 4 that the Employee would have been entitled
to receive during the remainder of the then current term of this Agreement had
such termination not occurred; and
(ii) The Corporation shall maintain in full force and effect
for the continued benefit of the Employee for the remainder of the then current
term of this Agreement, all employee welfare benefit plans and programs or
arrangements in which the Employee was entitled to participate immediately prior
to such termination, provided that continued participation is
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possible under the general terms and provisions of such plans and programs. In
the event that Employee's participation in any such plan or program is barred,
the Corporation shall arrange to provide the Employee with benefits
substantially similar to those which the Employee was entitled to receive under
such plans and program; and
(iii) A payment in cash on the date his employment terminates
equal to the amount of any cash bonus paid to him in respect of the fiscal year
of the Corporation prior to the fiscal year in which his employment terminates,
multiplied by a fraction, the numerator of which is the number of days that
elapse before the date his employment terminates in the fiscal year of the
Corporation in which his employment terminates and the denominator of which is
three hundred sixty-five (365).
Notwithstanding anything in this Agreement to the contrary, if Employee
breaches Section 11 or 12, Employee will not thereafter be entitled to receive
any further compensation or benefits pursuant to this Section 10(d). In
addition, notwithstanding anything in this Agreement to the contrary, the
Corporation shall not be required to make any payment that is prohibited by the
terms of the regulations presently found at 12 C.F.R. part 359 or to the extent
that any other governmental approval of the payment required by law is not
received.
(3) For purposes of this Agreement, "Good Reason" shall mean:
(i) The assignment of duties to the Employee by the
Corporation which result in the Employee having significantly less authority or
responsibility than he has on the date hereof, without his express written
consent;
(ii) The removal of the Employee from or any failure to
re-elect him to the position of President and Chief Executive Officer of the
Corporation and First Bank;
(iii) Requiring the Employee to maintain his principal office
anywhere outside of the Virginia Counties of Xxxxxxxxx, Xxxxxx and Shenandoah,
or cities located therein;
(iv) The failure of the Corporation to provide the Employee
with substantially the same fringe benefits that are provided to him at the
inception of this agreement;
(v) The Corporation's failure to comply with any material term
of this Agreement; or
(vi) The failure of the Corporation to obtain the assumption
of and agreement to perform this Agreement by any successor as contemplated in
Section 14 hereof.
(e) The Corporation shall have the right to terminate
Employee's employment under this Agreement at any time for Cause, which
termination shall be effective immediately. Termination for "Cause" shall
include termination for Employee's personal dishonesty, incompetence, willful
misconduct, breach of a fiduciary duty involving personal profit, intentional
failure to perform stated duties, willful violation of any law, rule or
regulation (other
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than traffic violations or similar offenses) or final cease-and-desist order,
conviction of a felony or of a misdemeanor involving moral turpitude,
misappropriation of the Corporation's assets (determined on a reasonable basis)
or those of its Affiliates, or material breach of any other provision of this
Agreement. Termination for Cause also shall include termination as a result of
the Employee's failure to correct a material deficiency in the performance of
his duties within 60 days after a written notice from the Board of Directors or
such other reasonable period of time specified by the Board of Directors if such
deficiency cannot be cured within 60 days. Any notice given under this
subsection shall state that it is a notice pursuant to Section 10(e) of this
Agreement and shall set forth the Board's complaints in detail sufficient to
allow Employee to understand and correct them. In the event Employee's
employment under this Agreement is terminated for Cause, Employee shall
thereafter have no right to receive compensation or other benefits under this
Agreement.
(f) The Corporation may terminate Employee's employment under
this Agreement, after having established the Employee's disability by giving to
Employee written notice of its intention to terminate his employment for
disability and his employment with the Corporation shall terminate effective on
the 90th day after receipt of such notice if within 90 days after such receipt
Employee shall fail to return to the full-time performance of the essential
functions of his position (and if Employee's disability has been established
pursuant to the definition of "disability" set forth below). For purposes of
this Agreement, "disability" means either (i) disability which after the
expiration of more than 13 consecutive weeks after its commencement is
determined to be total and permanent by a physician selected and paid for by the
Corporation or its insurers, and acceptable to Employee or his legal
representative, which consent shall not be unreasonably withheld or (ii)
disability as defined in the policy of disability insurance maintained by the
Corporation or its Affiliates for the benefit of Employee, whichever shall be
more favorable to Employee. Notwithstanding any other provision of this
Agreement, the Corporation shall comply with all requirements of the Americans
with Disabilities Act, 42 U.S.C. ss. 12101 et. seq.
(g) If Employee is suspended and/or temporarily prohibited
from participating in the conduct of the Corporation's affairs by a notice
served pursuant to the Federal Deposit Insurance Act, the Corporation's
obligations under this Employment Agreement shall be suspended as of the date of
service unless stayed by appropriate proceedings. If the charges in the notice
are dismissed, the Corporation may in its discretion (i) pay Employee all or
part of the compensation withheld while its contract obligations were suspended,
and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(h) If Employee is removed and/or permanently prohibited from
participating in the conduct of the Corporation's affairs by an order issued
under the Federal Deposit Insurance Act or the Code of Virginia, all obligations
of the Corporation under this Employment Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(i)(1) If Employee's employment is terminated without Cause or
if he resigns for Good Reason within one year after a Change of Control shall
have occurred, then on or before Employee's last day of employment with the
Corporation, the Corporation shall pay to Employee as compensation for services
rendered to the Corporation and its Affiliates a cash amount
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(subject to any applicable payroll or other taxes required to be withheld) equal
to the excess, if any, of 299% of Employee's "annualized includable compensation
for the base period", as defined in Section 280G of the Internal Revenue Code of
1986 (the "Code"), over the total amount payable to Employee under Section 10(d)
provided that, at the option of Employee, the cash amount required to be paid
hereby shall be paid by the Corporation in equal monthly installments over the
thirty-six (36) months succeeding the date of termination, payable on the first
day of each such month.
(2) For purposes of this Agreement, a Change of Control occurs
if, after the date of this Agreement, (i) any person, including a "group" as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the
owner or beneficial owner of Corporation securities having 50% or more of the
combined voting power of the then outstanding Corporation securities that may be
cast for the election of the Corporation's directors other than a result of an
issuance of securities initiated by the Corporation, or open market purchases
approved by the Board of Directors, as long as the majority of the Board of
Directors approving the purchases is a majority at the time the purchases are
made; or (ii) as the direct or indirect result of, or in connection with, a
tender or exchange offer, a merger or other business combination, a sale of
assets, a contested election of directors, or any combination of these events,
the persons who were directors of the Corporation before such events cease to
constitute a majority of the Corporation's Board, or any successor's board,
within two years of the last of such transactions. For purposes of this
Agreement, a Change of Control occurs on the date on which an event described in
(i) or (ii) occurs. If a Change of Control occurs on account of a series of
transactions or events, the Change of Control occurs on the date of the last of
such transactions or events.
(3) It is the intention of the parties that no payment be made
or benefit provided to Employee pursuant to this Agreement that would constitute
an "excess parachute payment" within the meaning of Section 280G of the Code and
any regulations thereunder, thereby resulting in a loss of an income tax
deduction by the Corporation or the imposition of an excise tax on Employee
under Section 4999 of the Code. If the independent accountants serving as
auditors for the Corporation on the date of a Change of Control (or any other
accounting firm designated by the Corporation) determine that some or all of the
payments or benefits scheduled under this Agreement, as well as any other
payments or benefits on a Change of Control, would be nondeductible by the
Company under Section 280G of the Code, then the payments scheduled under this
Agreement will be reduced to one dollar less than the maximum amount which may
be paid without causing any such payment or benefit to be nondeductible. The
determination made as to the reduction of benefits or payments required
hereunder by the independent accountants shall be binding on the parties.
Employee shall have the right to designate within a reasonable period, which
payments or benefits will be reduced; provided, however, that if no direction is
received from Employee, the Corporation shall implement the reductions in its
discretion.
Section 11. Confidentiality/Nondisclosure. Employee covenants and
agrees that any and all information concerning the customers, businesses and
services of the Corporation of which he has knowledge or access as a result of
his association with the Corporation in any capacity, shall be deemed
confidential in nature and shall not, without the proper written consent of the
Corporation,
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be directly or indirectly used, disseminated, disclosed or published by Employee
to third parties other than in connection with the usual conduct of the business
of the Corporation. Such information shall expressly include, but shall not be
limited to, information concerning the Corporation's trade secrets, business
operations, business records, customer lists or other customer information. Upon
termination of employment Employee shall deliver to the Corporation all
originals and copies of documents, forms, records or other information, in
whatever form it may exist, concerning the Corporation or its business,
customers, products or services. In construing this provision it is agreed that
it shall be interpreted broadly so as to provide the Corporation with the
maximum protection. This Section 11 shall not be applicable to any information
which, through no misconduct or negligence of Employee, has previously been
disclosed to the public by anyone other than Employee.
Section 12. Covenant Not to Compete. During the term of this Agreement
and throughout any further period that he is an officer or employee of the
Corporation, and for a period of twelve (12) months from and after the date that
Employee is (for any reason) no longer employed by the Corporation or for a
period of twelve (12) months from the date of entry by a court of competent
jurisdiction of a final judgment enforcing this covenant in the event of a
breach by Employee, whichever is later, Employee covenants and agrees that he
will not, directly or indirectly, either as a principal, agent, employee,
employer, stockholder, co-partner or in any other individual or representative
capacity whatsoever: (i) engage in a Competitive Business anywhere within a ten
(10) mile straight-line radius of any office operated by the Corporation on the
date Employee's employment terminates; or (ii) solicit, or assist any other
person or business entity in soliciting, any depositors or other customers of
the Corporation to make deposits in or to become customers of any other
financial institution conducting a Competitive Business; or (iii) induce any
individuals to terminate their employment with the Corporation or its
Affiliates. As used in this Agreement, the term "Competitive Business" means all
banking and financial products and services that are substantially similar to
those offered by the Corporation on the date that Employee's employment
terminates.
Section 13. Injunctive Relief, Damages, Etc. Employee agrees that given
the nature of the positions held by Employee with the Corporation, that each and
every one of the covenants and restrictions set forth in Sections 11 and 12
above are reasonable in scope, length of time and geographic area and are
necessary for the protection of the significant investment of the Corporation in
developing, maintaining and expanding its business. Accordingly, the parties
hereto agree that in the event of any breach by Employee of any of the
provisions of Sections 11 or 12 that monetary damages alone will not adequately
compensate the Corporation for its losses and, therefore, that it may seek any
and all legal or equitable relief available to it, specifically including, but
not limited to, injunctive relief and Employee shall be liable for all damages,
including actual and consequential damages, costs and expenses, including legal
costs and actual attorneys' fees, incurred by the Corporation as a result of
taking action to enforce, or recover for any breach of, Section 11 or Section
12. The covenants contained in Sections 11 and 12 shall be construed and
interpreted in any judicial proceeding to permit their enforcement to the
maximum extent permitted by law. Should a court of competent jurisdiction
determine that any provision of the covenants and restrictions set forth in
Section 12 above is unenforceable as being overbroad as to time, area or
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scope, the court may strike the offending provision or reform such provision to
substitute such other terms as are reasonable to protect the Corporation's
legitimate business interests.
Section 14. Binding Effect/Assignability. This Employment Agreement
shall be binding upon and inure to the benefit of the Corporation and Employee
and their respective heirs, legal representatives, executors, administrators,
successors and assigns, but neither this Agreement, nor any of the rights
hereunder, shall be assignable by Employee or any beneficiary or beneficiaries
designated by Employee. The Corporation will require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business, stock or assets of the Corporation, by
agreement in form and substance reasonably satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in its entirety. Failure of
the Corporation to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Employee to
the compensation described in Sections 10(d) and 10(i). As used in this
Agreement, "Corporation" shall mean First National Corporation, a Virginia
corporation, and any successor to its respective business, stock or assets as
aforesaid which executes and delivers the agreement provided for in this Section
14 or which otherwise becomes bound by all the terms and provisions of this
Agreement by operation of law.
Section 15. Governing Law. This Employment Agreement shall be subject
to and construed in accordance with the laws of Virginia.
Section 16. Invalid Provisions. The invalidity or unenforceability of
any particular provision of this Employment Agreement shall not affect the
validity or enforceability of any other provisions hereof, and this Employment
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions were omitted.
Section 17. Notices. Any and all notices, designations, consents,
offers, acceptance or any other communications provided for herein shall be
given in writing and shall be deemed properly delivered if delivered in person
or by registered or certified mail, return receipt requested, addressed in the
case of the Corporation to its registered office or in the case of Employee to
his last known address.
Section 18. Entire Agreement.
(a) This Employment Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
and all other agreements, either oral or in writing, among the parties hereto
with respect to the subject matter hereof.
(b) This Employment Agreement may be executed in one or more
counterparts, each of which shall be considered an original copy of this
Agreement, but all of which together shall evidence only one agreement.
Section 19. Amendment and Waiver. This Employment Agreement may not be
amended except by an instrument in writing signed by or on behalf of each of the
parties hereto. No waiver
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of any provision of this Employment Agreement shall be valid unless in writing
and signed by the person or party to be charged.
Section 20. Case and Gender. Wherever required by the context of this
Employment Agreement, the singular or plural case and the masculine, feminine
and neuter genders shall be interchangeable.
Section 21. Captions. The captions used in this Employment Agreement
are intended for descriptive and reference purposes only and are not intended to
affect the meaning of any Section hereunder.
IN WITNESS WHEREOF, the Corporation has caused this Employment
Agreement to be signed by its duly authorized officer and Employee has hereunto
set his hand and seal on the day and year first above written.
FIRST NATIONAL CORPORATION
By:
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Title: Chairman of the Board of Directors
ATTEST:
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EMPLOYEE
(SEAL)
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Xxxxx X. Xxxxx
ATTEST:
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