Exhibit 10(c)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
Tysons National Bank (the "Bank"), Tysons Financial Corporation (the "Company")
and Xxxxxx X. Xxxxx (the "Executive") this 17th day of October, 1996.
RECITALS:
WHEREAS, The Bank and the Company presently employ the Executive as
President and Chief Executive Officer pursuant to an Employment Agreement dated
February 9, 1990, as amended ("Prior Agreement"), which the parties desire to
supersede and replace with this Agreement; and
WHEREAS, The Board of Directors of the Bank (the "Bank Board") and the
Board of Directors of the Company (the "Company Board") recognize that the
Executive's contribution to the growth and success of the Bank since the Bank's
creation has been substantial. The Bank Board and the Company Board desire to
provide for the continued employment of the Executive and to make certain
changes in the Executive's employment arrangements which the Bank Board and the
Company Board have determined will reinforce and encourage the continued
dedication of the Executive to the Bank and the Company and will promote the
best interests of the Bank, the Company and its stockholders.
WHEREAS, The Executive is willing to continue to serve the Bank and the
Company on the terms and conditions herein provided.
NOW THEREFORE, In consideration of the foregoing, the mutual covenants
contained herein, the recitals set forth above, which are hereby incorporated by
reference herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Employment. The Bank and the Company will continue to employ the
Executive, and the Executive shall continue to serve the Bank and the Company,
as President and Chief Executive Officer upon the terms and conditions set forth
herein. The Executive shall have such authority and responsibilities consistent
with her position and which may be set forth in the Bank's or the Company's
bylaws or assigned by the Bank Board or the Company Board from time to time. The
Executive shall devote her full business time, attention, skill and efforts to
the performance of her duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Bank and/or Company
policy. The Executive may devote reasonable periods to service as a director or
advisor to other organizations, to charitable and community activities, and to
managing her personal investments, provided that such activities do not
materially interfere with the performance of her duties hereunder and are not in
conflict or competitive with, or adverse to, the interests of the Bank and the
Company.
2. Term. Unless earlier terminated as provided herein, the Executive's
employment under this Agreement shall be for an initial term (the "Initial
Term") of four (4) years, commencing as of January 1, 1996, and terminating on
December 31, 1999; provided, however, this Agreement shall be automatically
renewed after the Initial Term for additional term(s) of one (1) year ("Renewal
Terms") unless either party gives the other written notice of non-renewal not
later than six (6) months prior to the expiration of the Initial Term or any
Renewal Term.
3. Compensation and Benefits.
3.1 Base Compensation. The Bank shall pay the Executive a base
annual salary ("Base Compensation") at a rate of not less than $130,000 per
annum commencing January 1, 1996, and not less than $140,000 commencing January
1, 1997, in accordance with the salary payment practices of the Bank. The Bank
Board (upon recommendation of the Personnel and Compensation Committee) shall
review the Executive's Base Compensation at least annually (commencing for
calendar year 1998 and each year thereafter) and may increase the Executive's
Base Compensation if it determines in its sole discretion that an increase is
appropriate. In making such determination, the Bank Board shall review peer
group CEO compensation, and such other factors as the parties may agree upon;
provided however, Base Compensation shall be increased by at least the Consumer
Price Index. As used herein, the Term "Consumer Price Index" shall mean the
"United States Bureau of Labor Statistics, Consumer Price Index for Urban Wage
Earners and Clerical Workers" all items, Washington, D.C. standard Metropolitan
Statistical Area Average (1982-1984 = 100.00) CPI-W, and any revisions of or
substitutes for that Index.
3.2 Directors Fees. The Bank and the Company shall also pay to
the Executive Directors fees on the same basis as other directors of the Bank
and the Company commencing January 1, 1996.
3.3 Short Term Performance Bonus. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for earnings and asset growth
established by the Bank Board, in consultation with the Executive, the Executive
shall be entitled to receive a short term performance bonus ("Short Term
Performance Bonus"), in cash, as a percentage of Base Compensation, payable
within thirty (30) days after the completion of the year end financial
statements as follows, with earnings growth and asset growth carrying a fifty
percent (50%) weight and the payout between 10% and 30% being prorated on the
basis of the percentage of performance level:
payout performance level
------ -----------------
10% 90%
15% 100%
20% 110%
30% 125% or more
For example, if Base Compensation for the year in question was $130,000 and the
Executive's performance level was 95% of asset growth and 105% of earnings
growth, the Short Term Performance Bonus would be $19,500, calculated as
follows:
Target Base Compensation Weight Payout Bonus
------ ----------------- ------ ------ -----
Asset Growth ($130,000) x (.5) x (12.5%) = $ 8,125
Earnings ($130,000) x (.5) x (17.5%) = $11,375
-------
Total $19,500
3.4 Long Term Performance Bond. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for earnings and asset growth
established by the Bank Board, in consultation with the Executive, the Executive
shall be entitled to receive a long term performance bonus ("Long Term
Performance Bonus"), in the form of stock options for a dollar amount of shares
calculated as a percentage of Base Compensation, to be awarded within thirty
(30) days after the completion of the year end financial statements as follows,
with earnings growth and asset growth carrying a fifty percent (50%) weight and
the payout between .25 and 1.00 being prorated on the basis of the percentage of
performance level:
payout performance level
------ -----------------
.25 90%
.50 100%
.75 110%
1.00 125% or more
Such stock options shall constitute incentive stock options defined under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") and
shall be issued under the 1992 Stock Option Plan, as amended as of the issuance
date, or any successor stock option plan or plans (the "Plan"), at an exercise
price equal to the fair market value of the underlying shares at the issuance
date, under terms and conditions substantially in the form of the Stock Option
Grant Agreement attached hereto as Exhibit A.
For example, if Base Compensation for the year in question was $130,000 and at
the time of the award, the price of the shares of common stock was $10 per
share, and the Executive's performance level was 102% of asset growth and 93% of
earnings growth, the Long Term Performance Bonus would be an award of the option
to purchase 5704 shares at $10 per share, calculated as follows:
Target Base Compensation Weight Payout Bonus
------ ----------------- ------ ------ ------
Asset Growth ($130,000) x (.5) x (.55) = $35,750.00
Earnings ($130,000) x (.5) x (.3275) = $21,287.50
----------
Total $57,037.50
Total = $57,037.50 + $10 per share = 5704 option shares
3.5 Grant of Option Upon Execution. Upon execution of this
Agreement, the Company shall grant to the Executive an option ("Execution
Option") to purchase six thousand (6,000) shares of stock of the Company at an
exercise price of Eleven Dollars ($11). The Execution Option shall vest
immediately as to 100% of the shares subject to such Option. Such stock option
shall constitute an incentive stock option under Code section 422, if the
exercise price equals or exceeds the fair market value of the underlying shares
at the issuance date, and shall be issued under the Plan, as amended as of the
issuance date, under the terms and conditions contained in the Stock Option
Grant Agreement attached hereto as Exhibit B, which shall be executed between
the parties as of the date of the execution of this Agreement.
3.6 Other Benefit Plans. The Executive shall continue to
participate in all retirement, welfare, life and health insurance, and other
benefit plans or programs of the Bank now or hereafter applicable to the
Executive or applicable generally to employees of the Bank or to a class of
employees that includes senior executives of the Bank; provided (i) that during
any period during the Term that the Executive is subject to a Disability (as
defined in Paragraph 4.12), the amount of the Executive's compensation provided
under this Paragraph 3 shall be reduced by the sum of the amounts, if any, paid
to the Executive for the same period under any disability benefit or pension
plan of the Bank or the Company; and (ii) that the Executive's participation in
the Plan shall be limited to the participation set forth in paragraphs 3.4 and
3.5, unless otherwise determined by the Bank Board and/or the Company Board.
3.7 Automobile Expenses. The Banks shall continue to provide
to the Executive an automobile owned or leased by the Bank of a make and model
appropriate to the Executive's status or, in lieu thereof, shall provide the
Executive with an annual allowance of not less than $7,500 to partially cover
the cost of the business use of an automobile owned or leased by the Executive.
3.8 Dues Reimbursement. The Bank shall continue to reimburse
the Executive's reasonable expenses for dues for one country club and one dining
club membership held by the Executive. The Bank shall pay the initiation fee for
a membership in the name of Executive in a country club of the Executive's
choice, not to exceed Twenty Thousand Dollars ($20,000) and to be payable in
annual installments not to exceed Seven Thousand Dollars ($7,000). In the event
that Executive terminates this Agreement during the Initial Term (other than a
termination pursuant to Paragraph 4.15), or exercises her right not to renew at
the end of the Initial Term or any Renewal Term; or in the event that the Bank
terminates Executive's employment for Just Cause pursuant to Paragraph 4.13,
Executive shall reimburse the Bank the initiation fee paid by the Bank. Such
reimbursement shall be paid on or before the Termination Date (as defined in
Paragraph 4.3).
3.9 Expense Reimbursement. The Bank shall continue to
reimburse the Executive for travel, seminar, and other expenses related to the
Executive's duties which are incurred and accounted for in accordance with the
historic practices of the Bank.
3.10 Bonus Targets for 1996. For the period January 1, 1996,
through June 30, 1996, the budgetary goals for earnings and asset growth in
connection with the bonus to be paid to Executive after the end of the fiscal
year, shall be the goals heretofore established by the Bank Board for that
period. The bonus for that period shall be determined by the Bank Board upon the
recommendation of the Personnel and Compensation Committee. For the period July
1, 1996, through December 31, 1996, the targets to be used in connection with
Paragraphs 3.3 and 3.4, shall be established by the Bank Board, in consultation
with the Executive, and the bonus for that period will be calculated in
accordance with Paragraphs 3.3 and 3.4.
4. Termination.
4.1 The Executive's employment under this Agreement may be
terminated prior to the end of the Initial Term or any Renewal Term only as
follows:
4.11 Upon the death of the Executive.
4.12 By the Bank due to the Disability of the
Executive upon delivery of a Notice of Termination (as defined
in Paragraph 4.2) to the Executive. As used herein,
"Disability" shall mean the inability of the Executive, due to
illness, accident, or any other physical or mental incapacity,
to fulfill her obligations hereunder for a period of one
hundred eighty (180) consecutive days during the term hereof.
4.13 The Bank or the Company may, by written notice
to the Executive, immediately terminate her employment at any
time, for Just Cause. The Executive shall have no right to
receive compensation or other benefits for any period after
termination for Just Cause. Termination for "Just Cause" shall
mean termination because of, in the good faith determination
of the Company Board and the Bank Board, the Executive's
personal dishonesty, breach of fiduciary duty involving
personal profit, willful failure to perform stated duties,
repeated refusal to carry out the written directions of the
Bank Board or the Company Board, willful violation of any law,
rule or regulation (other than traffic violations or similar
offenses), final cease-and-desist order, or material breach of
any provision of this Agreement. No act, or failure to act, on
the Executive's part shall be considered "willful" unless she
has acted, or failed to act, with an absence of good faith and
without a reasonable belief that her action or failure to act
was in the best interests of the Company or the Bank.
Notwithstanding the foregoing, the Executive shall not be
deemed to have been terminated for Just Cause unless there
shall have been delivered to the Executive a copy of a
resolution duly adopted by the affirmative vote of not less
than a two-thirds (2/3) majority of the entire membership of
the Company Board and the Bank Board at a meeting of such
Boards called and held for such purpose (after reasonable
notice to the Executive and an opportunity for the Executive
to be heard before such Boards), finding that in the good
faith opinion of such Boards the Executive was guilty of
conduct constituting Just Cause and specifying the particulars
thereof in detail.
4.14 By the Bank or the Company, at any time, without
Just Cause, upon delivery of a Notice of Termination (as
defined in paragraph 4.2) to the Executive. No Notice of
Termination shall be given under this section unless there
shall have been a vote of not less than a majority of the
entire membership of the Company Board and the Bank Board at a
meeting of such Boards called and held for that purpose.
4.15 By the Executive for Just Cause by delivering a
Notice of Termination (as hereinafter defined in paragraph
4.2) stating with particularity the reasons for the giving of
the Notice of Termination. Upon receipt of the Notice of
Termination under this paragraph 4.15, the Bank and/or the
Company shall have a thirty (30) day period within which to
cure the circumstances set forth in the Notice of Termination
given by the Executive. As used in this paragraph 4.15, Just
Cause shall mean the occurrence of any of the following events
that have not been consented to in writing by the Executive in
advance: (i) the requirement that the Executive move her
personal residence, or perform her principal executive
functions, more than 35 miles from her primary office; (ii)
the assignment to the Executive of duties and responsibilities
materially different from those normally associated with her
position as referenced in Paragraph 1 hereof; (iii) a failure
to elect or re-elect the Executive to the Bank Board or the
Company Board; or (iv) a material diminution or reduction in
the Executive's responsibilities or authority (including
reporting responsibilities) in connection with her employment
with the Bank.
4.2 "Notice of Termination" shall mean a written notice of
termination from the Bank or the Executive which specifies an effective date of
termination, indicates the specific termination provision in this Agreement
relied upon, and sets forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of the Executive's employment under
the provision so indicated. A Notice of Termination by the Bank without Just
Cause shall be sufficient if it states that the termination is without Just
Cause without further detail.
4.3 "Termination Date" shall mean, in the case of the
Executive's death, her date of death or the date upon which the employment of
the Executive ceases.
4.4 If the Executive's employment with the Bank and/or the
Company shall be terminated during the Term (i) by reason of the Executive's
death, or (ii) by the Bank and/or the Company for Disability or Just Cause, the
Bank shall pay to the Executive (or in the case of her death, the Executive's
estate) within fifteen (15) days after the Termination Date a lump sum cash
payment equal to all Base Compensation and Directors fees earned through the
Termination Date. If the Termination Date occurs after the end of a fiscal year
but before Executive has received any Short Term and/or Long Term Performance
Bonuses to which she is entitled for that fiscal year pursuant to the provisions
of paragraphs 3.3 and 3.4, then Executive shall also be paid the Long Term and
Short Term Performance Bonuses in accordance with the provisions of Paragraphs
3.3 and 3.4 above. Vested rights of the Executive relating to such matters as
her 401(k) account, ESOP account, qualified pension plan and the like shall not
be effected by such termination, but shall be governed by the terms of such
plans and accounts.
4.5 If the Executive's employment with the Bank and/or the
Company shall be terminated by the Bank and/or the Company without Just Cause
(pursuant to paragraph 4.14), the Executive shall be entitled to the following:
4.51 The Bank and/or the Company shall pay the
Executive (i) in cash within fifteen (15) days after
Termination Date an amount equal to all Base Compensation and
Directors Fees earned through the Termination Date; and (ii)
in the event that the Termination Date occurs after the end of
a fiscal year but before Executive has received any Short Term
and/or Long Term Performance Bonuses to which she is entitled
for that fiscal year pursuant to the provisions of paragraphs
3.3 and 3.4, then Executive shall also be paid the Long Term
and Short Term Performance Bonuses in accordance with the
provisions of Paragraphs 3.3 and 3.4 above.
4.52 For the period from the Termination Date through
the end of the Initial Term or the Renewal Term, the Bank or
the Company shall pay to the Executive in cash at the end of
each regular pay period of the Bank, an amount equal to the
Base Compensation to which Executive is entitled pursuant to
Paragraph 3.1 above; provided, however, in no event shall
Executive be paid under this subsection for a period of less
than twelve months.
4.53 For the period during which the Executive shall
be entitled to payments under Paragraph 4.52 above (the
"Continuation Period"), the Bank shall at its expense continue
on behalf of the Executive and her dependents and
beneficiaries the life insurance, disability, medical, dental
and hospitalization benefits provided to the Executive as of
the Termination Date, or at any time thereafter to other
similarly situated executives who continue in the employ of
the Bank during the Continuation Period. The coverage and
benefits (including deductibles and costs) provided in this
Paragraph 4.53 during the Continuation Period shall be no less
favorable to the Executive and her dependents and
beneficiaries than the benefits available to Executive as of
the Termination Date. The Bank's obligation hereunder with
respect to the foregoing benefits shall be limited to the
extent that the Executive obtains any such benefits pursuant
to a subsequent employer's benefit plans, in which case the
Bank may reduce the coverage of any benefits it is required to
provide the Executive hereunder as long as the aggregate
coverages and benefits of the combined benefit plans is no
less favorable to the Executive than the coverages and
benefits required to be provided hereunder; and
4.54 The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by
seeking other employment or otherwise and no such payment
shall be offset or reduced by the amount of any compensation
or benefits provided to the Executive in any subsequent
employment except as provided in Paragraph 4.53.
4.6 The severance pay and benefits provided for in this
Paragraph 4 shall be in lieu of any other severance or termination pay to which
the Executive may be entitled under any Bank severance or termination plan,
program, practice or arrangement, except that termination of Executive's
employment by the Bank and/or the Company without Just Cause within six (6)
months before or upon the occurrence of a Change in Control (as defined in
Paragraph 5.13) or by the Executive after the occurrence of a Change in Control,
as hereinafter defined shall be covered by the provisions of paragraph 5 below
and the provisions of this paragraph 4 shall not apply.
4.7 In the event that the Bank Board and/or the Company Board
elects not to renew Executive's contract pursuant to Paragraph 2, Executive
shall be entitled to Base Compensation, Directors fees, Short Term and Long Term
Performance Bonuses payable from the date of the Notice of Termination pursuant
to paragraph 2 to the end of the Initial Term or Renewal Term, as the case may
be. In addition, Executive shall be entitled to be paid Base Compensation from
the Termination Date for an additional period of six (6) months (the "Post
Expiration Period"). During the Post Expiration Period, the Executive shall be
entitled to the benefits set forth in Paragraph 4.53.
4.8 In the event that the Executive terminates this Agreement
for Just Cause pursuant to Paragraph 4.15, she shall be entitled to be paid her
Base Compensation for an additional period of six (6) months after the
Termination Date.
4.9 This Agreement shall terminate immediately without further
liability or obligation of the Bank or the Company to the Executive (i) if the
Bank is closed or taken over by the Office of the Comptroller of the Currency or
other supervisory authority, including the Federal Deposit Insurance
Corporation; or (ii) if any such supervisory authority should exercise its cease
and desist powers to remove the Executive from office.
5. Change in Control Provisions.
5.1 Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
5.11 "Base Amount" shall mean the amount of the
Executive's annual Base Compensation at the rate in effect immediately prior to
the Change in Control.
5.12 "Bonus Amount" shall mean the most recent
annual Short Term Performance Bonus paid or payable to the Executive, the full
fiscal year ended prior to the fiscal year during which a Change in Control
occurred.
5.13 "Change in Control" as used herein shall mean
any of the following events:
(A) When the Company or the Bank
acquires actual knowledge that any person (as such term is used in Section 13(d)
and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")), other
than an employee benefit plan established or maintained by the Company or the
Bank, is or becomes the beneficial owner (as defined in Rule 13d-3 of the
Exchange Act) directly or indirectly, or record owner of securities of the
Company representing 25% or more of the combined voting power of the Company's
then outstanding securities;
(B) Upon the first purchase of the
Company's common stock pursuant to a tender or exchange offer (other than a
tender or exchange offer made by the Company or an employee benefit plan
established or maintained by the Company or the Bank);
(C) Upon the approval by the Company's
stockholders of (1) a merger or consolidation of the Company with or into
another corporation (other than a merger or consolidation of the definitive
agreement for which provides that at least two-thirds of the directors of the
surviving or resulting corporation immediately after the transaction are
Continuing Directors (as defined herein)), or (2) a sale or disposition of all
or substantially all of the Company's assets;
(D) If during any period of two
consecutive years, individuals who at the beginning of such period constitute
the Board of Directors of either the Company or the Bank (the "Continuing
Directors") cease for any reason to constitute at least a majority thereof;
(E) Upon a sale of (1) common stock of
the Bank if after such sale any person (as defined above), other than the
Company or an employee benefit plan established or maintained by the Company or
the Board, owns a majority of the Bank's common stock or (2) all or
substantially all of the Bank's assets; or
(F) Any other agreement, happening or
device which has substantially the same effect on control of the Company or the
Bank as any of the foregoing.
5.2 Upon termination of Executive's employment upon the
occurrence of a Change in Control of the Bank or the Company, or upon Notice of
Termination given by Executive pursuant to paragraph 5.3, as a consequence of a
Change in Control, the Bank or the Company shall pay to Executive an amount
equal to 2.0 multiplied by the Executive's Base Amount and Bonus Amount,
provided, however, such payment shall be reduced to the extent necessary to
eliminate the imposition of any taxes under Code Sections 280G and 4999 to such
payment, if the amount of such payment thereby received by the Executive on an
after tax basis would be higher than the amount of such payment the Executive
would otherwise receive on an after tax basis had no reduction occurred. In the
event that the Executive is entitled to any payments under this paragraph 5.2
and has already received any payments under the provisions of paragraph 4.5,
such payments already received shall be deducted from any payment due under this
paragraph 5.2.
5.3 Notwithstanding any other provision of this Agreement to
the contrary, the Executive may voluntarily terminate her employment under this
Agreement within six (6) months following a Change in Control of the Company or
the Bank, by giving Notice of Termination and the Executive shall thereupon be
entitled to receive the payment described in Paragraph 5.2 of this Agreement,
upon the occurrence of any of the following events, which have not been
consented to in advance by the Executive in writing: (i) the requirement that
the Executive move her personal residence, or perform her principal executive
functions, more than 35 miles from her primary office as of the date of the
Change in Control; (ii) a material reduction in the Executive's Base
Compensation as in effect on the date of the Change in Control or as the same
may be increased from time to time; (iii) the failure by the Bank and the
Company to continue to provide the Executive with compensation and benefits
provided for under this Agreement, as the same may be increased from time to
time, or with benefits substantially similar to those provided to her under any
of the Executive benefit plans to which the Executive now or hereafter becomes a
participant, or the taking of any action by the Company or the Bank which would
directly or indirectly reduce any of such benefits in a material way or deprive
the Executive of any material fringe benefit enjoyed by her at the time of the
Change in Control, provided that such reduction is not part of a Bank-wide
reduction which affects all employees or all similar situated employees; (iv)
the assignment to the Executive of duties and responsibilities materially
different from those normally associated with her position as referenced in
Paragraph 1 hereof; (v) a failure to elect or re-elect the Executive to the Bank
Board or the Company Board, if the Executive is serving on such Boards on the
date of the Change in Control; or (vi) a material diminution or reduction in the
Executive's responsibilities or authority (including reporting responsibilities)
in connection with her employment with this Bank.
5.4 Any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C. (beta) 1828(k) and any regulations promulgated thereunder.
6. Trade Secrets; Covenant not-to-compete.
6.1 The Executive shall not, at any time, either during the
Initial Term or any Renewal Term or after the Termination Date, use or disclose
any Trade Secrets of the Bank, except in fulfillment of her duties as the
Executive during her employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form. As used herein, "Trade Secrets" shall mean any information,
including but not limited to technical or non-technical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, information on
customers, or a list of actual or potential customers or suppliers, which: (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii) is subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
6.2 Upon termination of Executive's employment hereunder, by
the Bank, the Company or the Executive, for any reason, for a period of eighteen
(18) months after the Termination Date (the "Non-Compete Period"), Executive
agrees that she will not engage in banking activities, in which a chartered
state or national bank may at the time legally be engaged, within an area (the
"Territory") comprised of Fairfax, Arlington, Prince Xxxxxxx and Loudoun
Counties, including the incorporated cities as situated therein, and the City of
Alexandria in the Commonwealth of Virginia. In the event that the Bank or the
Company opens or acquires a location for its operations in any other
jurisdiction, the county or the District of Columbia in which such location is
opened or acquired shall be added to the Territory. During the Non-Compete
Period, Executive further agrees that she will not directly or indirectly
solicit or provide banking services to customers of the Bank or the Company.
7. Successors; Binding Agreement.
7.1 This Agreement shall be binding upon and shall inure to
the benefit of the Bank, their successors and assigns and the Company and the
Bank shall require any successors and assigns to expressly assume and agree to
perform 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.
7.2 Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, her beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
8. Fees and Expenses. The Bank shall pay legal fees and related
expenses incurred by the Executive as a consequence of the negotiation and
execution of this Agreement not to exceed Two Thousand Dollars ($2,000).
9. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
Tysons Financial Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Board of Directors
With a copy to: Secretary
If to the Bank:
Tysons National Bank
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Board of Directors
With a copy to: Secretary
If to the Executive:
Xxxxxx X. Xxxxx
000 Xxxxxx Xxxx, XX
Xxxxxx, Xxxxxxxx 00000
Any party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
All notices and communications shall be deemed to have been received on the date
of delivery thereof.
10. Settlement of Claims. The Company's and the Bank's obligations to
make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company or the Bank may have against the Executive or others.
The Company or the Bank may, however, withhold from any benefits payable under
this Agreement all federal, state, city, or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
11. Modification and Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive, the Bank, and the Company. No
waiver by any party hereto at any time of any breach by the other party hereto
of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
12. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Virginia without
giving effect to the conflict of laws principles thereof. Any action brought by
any party to this Agreement shall be brought and maintained in a court of
competent jurisdiction in the Commonwealth of Virginia.
13. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes the Prior Agreement and, except for
option and warrant agreements previously entered into between the Executive and
the Company, any and all prior agreements, if any, understandings and
arrangements, oral or written, between the parties hereto with respect to the
subject matter hereof.
15. Headings. The headings of Paragraphs herein are included solely for
convenience of reference and shall not control the meaning or interpretation of
any of the provisions of this Agreement.
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement
to be executed and its seal to be affixed hereunto by its officers thereunto
duly authorized, and the Executive has signed and sealed this Agreement,
effective as of the date first above written.
TYSONS NATIONAL BANK
By:________________________________ (SEAL)
J. Xxxxxxx Xxxxxxx, Chairman of the Board
TYSONS FINANCIAL CORPORATION
By:________________________________ (SEAL)
Xxxxxxx Xxxxxxxx, Chairman of the Board
EXECUTIVE
By:________________________________ (SEAL)
Xxxxxx X. Xxxxx
Exhibit A
TYSONS FINANCIAL CORPORATION
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT, is entered into as of this ______ day of
______________, to be effective _________________________, ("Date of Grant") by
and between TYSONS FINANCIAL CORPORATION, a Virginia corporation (the "Company")
and XXXXXX X. XXXXX (the "Optionee").
WHEREAS, the Board of Directors and shareholders of the Company adopted
and subsequently amended and restated a stock option plan known as the "Tysons"
Financial Corporation 1992 Stock Option Plan" (the "Plan"); and
WHEREAS, the Board has granted the Optionee a stock option to purchase
the number of shares of the Company's common stock as set forth below, and in
consideration of the granting of that stock option the Optionee intends to
remain in the employ of the Company, and.
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Incorporation of the Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the
Optionee, pursuant to the terms of her employment agreement with the Company, of
the right and option (the "Option") to purchase shall or any part of the number
of shares of the Company's Common Stock, par value $5 per share (the "Stock"),
set forth on Schedule A attached hereto and incorporated herein by reference.
The option shall be exercisable in the amounts and at the time specified on
Schedule A. The Option shall expire and shall not be exercisable after the date
specified on Schedule A or on such earlier date as determined pursuant to
Section 8, 9 or 10 hereof. Schedule A states whether, and with respect to how
many shares, the Option is intended to be an ISO.
3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A, which price shall be an amount not less than the Fair Market
Value (or 110% of Fair Market Value in the case of a more-than-10% owner) of a
share of Stock as of the Date of Grant (as defined in Section 11 below) if the
Option is an ISO.
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all of any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Option Non-Transferable. No ISO shall be transferable other than by
will or the laws of descent and distribution, or pursuant to a Domestic
Relations Order as defined in the Plan. During the lifetime of an Optionee, the
Option shall be exercisable only by such Optionee or the transferee under a
Domestic Relations Order (or by such person's guardian or legal representative,
should one be appointed).
6. Notice of Exercise of Option. This Option may be exercised, in whole
or in part, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule B) delivered or mailed to the Company as
specified in Section 13 hereof to the attention of the President/CEO or such
other officer as the Company may designate. Any such notice shall (a) specify
the number of shares or Stock subject to the Option as to which the Option is
being exercised, (b) contain such information as may be reasonably required
pursuant to Section 12 hereof, and (c) be accompanied by (i) a certified or
cashier's check payable t the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock owned by the
Optionee and duly endorsed or accompanied by stock transfer powers, or
authorization to the Company to withhold shares otherwise issuable upon exercise
of the Option, having a Fair Market Value equal to the total Exercise Price
applicable to such shares purchased hereunder, or (iii) a combination of the
above that, when aggregated, equals the total Exercise Price applicable to such
shares purchased hereunder. Upon receipt of any such Notice of Exercise and
accompanying payment, and subject to the terms hereof, the Company agrees to
issue stock certificates for the number of shares specified in such notice
registered in the name of the person exercising this Option.
Subject to such limitations as the Board may determine, the
Company may authorize payment of the Exercise Price, in whole or in part, by
delivery of a properly executed Notice of Exercise, together with irrevocable
instructions, to: (i) a brokerage firm designated by the Optionee and acceptable
to the Company in the Board's sole discretion, to deliver promptly to the
Company the aggregate amount of sale or loan proceeds to pay the Exercise Price
and any withholding tax obligations that may arise in connection with the
exercise, and (ii) the Company to deliver the certificates for such purchased
shares directly to such brokerage firm.
In addition to and at the time of payment of the Exercise
Price, the Optionee shall pay to the Company in cash the full amount of any
federal, state, and local income employment or other taxes required to be
withheld from the income of such Optionee as a result of such exercise;
provided, however, that in the discretion of the Board, all or any portion of
such tax obligations may, upon the irrevocable election of the Optionee, be paid
by tendering to the Company whole shares of Stock duly endorsed for transfer and
owned by the Optionee, or by authorization to the Company to withhold shares of
Stock otherwise issuable upon exercise of the Option, in either case in that
number of shares having a Fair Market Value on the date of exercise equal to the
amount of such taxes thereby being paid.
7. Adjustment in Option. The number of Shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
8. Termination of Employment.
(a) In the event of the termination of the Optionee's
employment with the Company or any of its Subsidiaries, other than a termination
that is either (i) for cause, as defined under any employment agreement then in
effect between the Company and the Optionee, (ii) voluntary on the part of the
Optionee and without written consent of the Company, or (iii) for reasons of
death or disability, the Optionee may exercise this Option at any time within 3
months after such termination to the extent of the number of shares which were
Purchasable hereunder at the date of such termination; but in no event may such
exercise occur after the Expiration date specified in Schedule A attached
hereto.
(b) In the event of termination of the Optionee's employment
that is either (i) for cause or (ii) voluntary on the part of the Optionee and
without the written consent of the Company, this Option, to the extent not
previously exercised, shall terminate 15 days after such termination and shall
not thereafter be or become exercisable.
(c) Retirement of the Optionee at the normal retirement date
as prescribed from time to time by the Company or any Subsidiary and termination
as a result of a change of control, as defined in any employment agreement then
in effect between the Company and the Optionee, shall be deemed to be a
termination of employment with consent for all purposes of this Option. This
Option does not confer upon the Optionee any right with respect to continuance
of employment by the Company or by any of its Subsidiaries. This Option shall
not be affected by any change of employment so long as the Optionee continues to
be an employee of the Company or one of its Subsidiaries.
9. Disabled Optionee. In the event of termination of employment because
of the Optionee's becoming disabled, as defined in Code Section 22(e)(e) and
determined within the sole discretion of the Board, the Optionee (or his or her
personal representative) may exercise this Option at any time within one year
after such termination to the extent of the number of shares which were
Purchasable hereunder at the date of such termination.
10. Death of Optionee. In the event of the Optionee's death while
employed by the Company or any of its Subsidiaries or within 15 days after a
termination of such employment (if such termination was neither (i) for cause
nor (ii) voluntary on the part of the Optionee and without the written consent
of the Company), the Optionee's executor, personal representative or the
person(s) to whom the Option shall have been transferred by will of the laws of
descent and distribution, as the case may be, may exercise this Option at any
time (a) within one year following the Optionee's death or, if earlier, (b) on
or before the Expiration Date of this Option. If the Optionee was an employee of
the Company or a Subsidiary at the time of death, this Option may be so
exercised to the extent of the number of shares that were Purchasable hereunder
at the date of death. If the Optionee's employment terminated prior to his or
her death, this Option may be exercised only to the extent of the number of
shares covered by this Option which were Purchasable hereunder at the date of
such termination.
11. Date of Grant. This Option was granted by the Board on the date set
forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate any law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission, the Federal Reserve Board and the Office of
the Comptroller of the Currency) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto
and their representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be
governed by the laws of, the Common of Virginia.
(c) Any requests or notices to be given hereunder shall be
deemed given, and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the designated
recipient, or three days after deposit thereof in the United States mail,
registered, return receipt requested and postage prepaid, addressed, if to the
Optionee, at the address set forth below and, if to the Company, to the
attention of the President/CEO of the Company at Tysons National Bank, 0000
Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000.
(d) Except as otherwise provided in the Plan, this Agreement
may not be modified except in writing executed by each of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused
this Stock Option Agreement to be executed on behalf of the Company and the
Company's seal to be affixed hereto and attested by the Secretary or an
Assistant Secretary of the Company, and the Optionee has executed this Stock
Option Agreement under seal, all as of the day and year first above written.
TYSONS FINANCIAL CORPORATION OPTIONEE
By:______________________________ ______________________________
Name: Name:
Title: Address:
______________________________
______________________________
ATTEST:
-----------------------------------
Secretary/Assistant Secretary
(SEAL)
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
TYSONS FINANCIAL CORPORATION
AND
XXXXXX X. XXXXX
Dated:____________________
1. Number of Shares Subject to Option: 6,000 Shares.
2. This Option (Check one) [ ] is [ ] is not an ISO
3. Option Exercise Price. $11.00 per Share. (If an ISO, insert a price
which is at least 100% of the Fair Market Value, or for a more-than-10%
owner, at least 110% of the Fair Market Value.)
4. Date of Grant: _________________, 1996
5. Option Vesting Schedule:
Check one:
( X ) Options are exercisable with respect to all shares on
or after the date hereof
( ) Options are exercisable with respect to the number of
shares indicated below on or after the date indicated
next to the number of shares:
No. of Shares Vesting Date
------------- -------------
6. Option Expiration Date:
Check one:
( X ) All options expire and are void unless exercised on
or before _____________, 2006. (If an ISO, insert a
date that is no later than the day before the 10th
anniversary of the Grant Date or, for an ISO granted
to a more-than-10% owner, the 5th such anniversary.)
( ) Options expire and are void unless exercised on or
before the date indicated next to the number of
shares:
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Tysons Financial Corporation (the
"Company") of this election to exercise the undersigned's stock option, in full
or part, to purchase ___________ shares (no less than 100, unless exercising in
full) to the Company's common stock, par value $5 per share (the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement") between the
undersigned and the Company dated
-----------------------------.
Accompanying this Notice is (1) a certified or a cashier's check in the
amount of $___________ payable to the Company, and/or (2) ___________ shares of
the Company's Common Stock presently owned by the undersigned and duly endorsed
or accompanied by stock transfer powers, having an aggregate Fair Market Value
(as defined in the Tysons Financial Corporation 1992 Stock Option Plan) as of
the date hereof of $______________. Such amounts are equal, in the aggregate, to
the purchase price per share set fourth in Schedule A of the Agreement
multiplied by the number of shares being purchased hereby (in each instance
subject to appropriate adjustment pursuant to Section 7 of the Agreement).
In the event that the amounts in (1) and (2) above are not equal, in
the aggregate, to the purchase price per share set forth in Schedule A of the
Agreement multiplied by the number of shares being purchased hereby (in each
instance subject to appropriate adjustment pursuant to Section 7 of the
Agreement), I hereby authorize the Company to withhold such number of shares of
the Company's Common Stock otherwise issuable upon this exercise, having an
aggregate Fair Market Value sufficient in amount as of the date hereto to equal
the excess, if any, of such total purchase price over the aggregate amounts in
(1) and (2) above.
IN WITNESS WHEREOF, the undersigned has set his hand and seal, this
_____ day of _________________, 19___.
OPTIONEE (OR OPTIONEE's ADMINISTRATOR, EXECUTOR OR PERSONAL
REPRESENTATIVE)
Name:
Position (if other than Optionee)
Received by TYSONS FINANCIAL CORPORATION on
___________________________, 199_____
By:_________________________________
Exhibit B
TYSONS FINANCIAL CORPORATION
STOCK OPTION AGREEMENT
Form of Option Agreement - Director
Tysons Financial Corporation 1992 Stock Option Plan, as amended and restated
August 21, 1996
TYSONS FINANCIAL CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ( "Agreement"), is entered into as of this
______ day of ___________ 19__, to be effective ____________, 1996, ("Date of
Grant") by and between Tysons Financial Corporation, a Virginia corporation (the
"Company"), and ____________________ (the "Optionee").
WHEREAS, the Board of Directors and shareholders of the Company adopted
and subsequently amended and restated a stock option plan known as the "Tysons
Financial Corporation 1992 Stock Option Plan" (the "Plan"); and
WHEREAS, the Board has granted the Optionee a stock option to purchase
the number of shares of the Company's common stock as set forth below, and in
consideration of the granting of that stock option the Optionee intends to
continue to serve on the Board of Directors of the Company for the remainder of
his/her term; and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, to enable and encourage stock ownership by Directors,
and also in consideration of the mutual covenants contained herein, the parties
hereto agree as follows:
1. Incorporation of Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the
Optionee, not in lieu of salary, directors' fees or other compensation, of the
right and option (the "Option") to purchase all or any part of the number of
shares of the Company's Common Stock, par value $5 per share (the "Stock"), set
forth on Schedule A attached hereto and incorporated herein by reference. The
Option shall be exercisable in the amounts and at the time specified on Schedule
A. The Option shall expire and shall not be exercisable after the date specified
on Schedule A or on such earlier date as determined pursuant to Section 8, 9 or
10 hereof. The Option evidenced hereby is not intended to constitute an
incentive stock option as such term is defined under Section 422 of the Code.
3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A.
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all or any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Option Non-Transferable. The Option is non-transferable other than
by will or the laws of descent and distribution or pursuant to a Domestic
Relations Order. During the lifetime of the Optionee, the Option shall be
exercisable only by such Optionee or the transferee under a Domestic Relations
Order (or by such person's guardian or legal representative, should one be
appointed).
6. Notice of Exercise of Option. This Option may be exercised, in whole
or in part, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule B) delivered or mailed to the Company as
specified in Section 13 hereof to the attention of the President/CEO or such
other officer as the Company may designate. Any such notice shall (a) specify
the number of shares of Stock subject to the Option as to which the Option is
being exercised, (b) contain such information as may be reasonably required
pursuant to Section 12 hereof, and (c) be accompanied by (i) a certified or
cashier's check payable to the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock owned by the
Optionee and duly endorsed or accompanied by stock transfer powers, or
authorization to the Company to withhold shares otherwise issuable upon exercise
of the Option, having a Fair Market Value equal to the total Exercise Price
applicable to such shares purchased hereunder, or (iii) a combination of the
above that, when aggregated, equals the total Exercise Price applicable to such
shares purchased hereunder. Upon receipt of any such Notice of Exercise and
accompanying payment, and subject to the terms hereof, the Company agrees to
issue stock certificates for the number of shares specified in such notice
registered in the name of the person exercising this Option.
Subject to such limitations as the Board may determine, the
Company may authorize payment of the Exercise Price, in whole or in part, by
delivery of a properly executed Notice of Exercise, together with irrevocable
instructions, to: (i) a brokerage firm designated by the Optionee and acceptable
to the Company, in the Board's sole discretion, to deliver promptly to the
Company the aggregate amount of sale or loan proceeds to pay the Exercise Price
and any withholding tax obligations that may arise in connection with the
exercise, and (ii) the Company to deliver the certificates for such purchased
shares directly to such brokerage firm.
In addition to and at the time of payment of the Exercise
Price, the Optionee shall pay to the Company in cash the full amount of any
federal, state, and local income, employment or other taxes required to be
withheld from the income of such Optionee as a result of such exercise;
provided, however, that in the discretion of the Board, all or any portion of
such tax obligations may, upon the irrevocable election of the Optionee, be paid
by tendering to the Company whole shares of Stock duly endorsed for transfer and
owned by the Optionee, or by authorization to the Company to withhold shares of
Stock otherwise issuable upon exercise of the Option, in either case in that
number of shares having a Fair Market Value on the date of exercise equal to the
amount of such taxes thereby being paid.
7. Adjustment in Option. The number of Shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
8. Cessation of Service as Director.
(a) In the event of the cessation of the Optionee's service as a
Director of the Company, other than a termination that is either (i) for cause,
(ii) voluntary resignation on the part of the Optionee and without written
consent of the Company, or (iii) for reasons of death or disability, the
Optionee may exercise this Option at any time within ______________ [15 days/30
days/3 months/1 year] after such cessation to the extent of the number of shares
which were Purchasable hereunder at the date of such termination; but in no
event may such exercise occur after the Expiration Date specified in Schedule A
attached hereto.
(b) In the event of a cessation of the Optionee's service as a Director
that is either (i) for cause or (ii) a voluntary resignation on the part of the
Optionee and without the written consent of the Company, this Option, to the
extent not previously exercised, shall terminate ______________ [immediately/15
days after such cessation/30 days after such cessation] and shall not thereafter
be or become exercisable.
(c) Retirement of the Optionee at the end of the term during which he
or she reaches normal retirement date as prescribed from time to time by the
Company shall be deemed to be a cessation of services with consent for all
purposes of this Option. Voluntary resignation shall include failure to stand
for reelection, other than upon retirement, for all purposes of this Option.
Whether a cessation of services constitutes termination for cause shall be
determined in the sole discretion of the Board. This Option does not confer upon
the Optionee any right with respect to continuance of service as a Director of
the Company.
9. Disabled Optionee. In the event of cessation of services as a
Director because of the Optionee's becoming disabled, as defined in Code Section
22(e)(3) and determined within the sole discretion of the Board, the Optionee
(or his or her personal representative) may exercise this Option at any time
within ______________ [30 days/3 months/1 year] after such cessation to the
extent of the number of shares which were Purchasable hereunder at the date of
such cessation; but in no event may such exercise occur after the Expiration
Date specified in Schedule A attached hereto.
10. Death of Optionee. In the event of the Optionee's death while
serving as a Director of the Company or within 15 days after a cessation of such
services (if such cessation was neither (i) for cause nor (ii) a voluntary
resignation on the part of the Optionee and without the written consent of the
Company), the Optionee's executor, personal representative or the person(s) to
whom the Option shall have been transferred by will or the laws of descent and
distribution, as the case may be, may exercise this Option at any time (a)
within ______________ [30 days/3 months/1 year] following the Optionee's death
or, if earlier, (b) on or before the Expiration Date of this Option. If the
Optionee was a Director of the Company at the time of death, this Option may be
so exercised to the extent of the number of shares that were Purchasable
hereunder at the date of death. If the Optionee's service as a Director ceased
prior to his or her death, this Option may be exercised only to the extent of
the number of shares covered by this Option which were Purchasable hereunder at
the date of such cessation.
11. Date of Grant. This Option was granted by the Board on the date set
forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate any law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission, the Federal Reserve Board and the Office of
the Comptroller of the Currency) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto and their
representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be governed
by the laws of, the Commonwealth of Virginia.
(c) Any requests or notices to be given hereunder shall be deemed
given, and any elections or exercises to be made or accomplished shall be deemed
made or accomplished, upon actual delivery thereof to the designated recipient,
or three days after deposit thereof in the United States mail, registered,
return receipt requested and postage prepaid, addressed, if to the Optionee, at
the address set forth below and, if to the Company, to the attention of the
President/CEO of the Company at Tysons National Bank, 0000 Xxxxxxxxxx Xxxxx,
Xxxxx 000, XxXxxx, Xxxxxxxx 00000.
(d) Except as otherwise provided in the Plan, this Agreement may not be
modified except in writing executed by each of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused
this Stock Option Agreement to be executed on behalf of the Company and the
Company's seal to be affixed hereto and attested by the Secretary or an
Assistant Secretary of the Company, and the Optionee has executed this Stock
Option Agreement under seal, all as of the day and year first above written.
TYSONS FINANCIAL CORPORATION OPTIONEE
By: _____________________________ ________________________________
Name: Name:
Title: Address:
--------------------------------
--------------------------------
ATTEST:
-----------------------------------------------------------------
Secretary/Assistant Secretary
[SEAL]
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
TYSONS FINANCIAL CORPORATION
AND
------------------------------------------------
Dated: ___________
1. Number of Shares Subject to Option: ________________________ Shares.
2. This Option is not an Incentive Stock Option within the meaning of Code
(beta)422.
3. Option Exercise Price: $____________________ per Share.
4. Date of Grant: ___________________
5. Option Vesting Schedule:
Check one:
( ) Options are exercisable with respect to all shares on
or after the date hereof.
( ) Options are exercisable with respect to the number of
shares indicated below on or after the date indicated
next to the number of shares:
No. of Shares Vesting Date
6. Option Expiration Date:
Check One:
( ) All options expire and are void unless exercised on
or before ______________, 19__.
( ) Options expire and are void unless exercised on or
before the date indicated next to the number of
shares:
No. of Shares Expiration Date
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Tysons Financial Corporation
(the "Company") of this election to exercise the undersigned's stock option, in
full or part, to purchase __________________ shares (no less than 100, unless
exercising in full) of the Company's common stock, par value $5 per share (the
"Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Company dated
------------------------.
Accompanying this Notice is (1) a certified or a cashier's
check in the amount of $____________ payable to the Company, and/or (2)
_______________ shares of the Company's Common Stock presently owned by the
undersigned and duly endorsed or accompanied by stock transfer powers, having an
aggregate Fair Market Value (as defined in the Tysons Financial Corporation 1992
Stock Option Plan) as of the date hereof of $____________________. Such amounts
are equal, in the aggregate, to the purchase price per share set forth in
Schedule A of the Agreement multiplied by the number of shares being purchased
hereby (in each instance subject to appropriate adjustment pursuant to Section 7
of the Agreement).
In the event that the amounts in (1) and (2) above are not
equal, in the aggregate, to the purchase price per share set forth in Schedule A
of the Agreement multiplied by the number of shares being purchased hereby (in
each instance subject to appropriate adjustment pursuant to Section 7 of the
Agreement), I hereby authorize the Company to withhold such number of shares of
the Company's Common Stock otherwise issuable upon this exercise, having an
aggregate Fair Market Value sufficient in amount as of the date hereof to equal
the excess, if any, of such total purchase price over the aggregate amounts in
(1) and (2) above.
IN WITNESS WHEREOF, the undersigned has set his hand and seal,
this ____ day of _______________, 19__.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR
OR PERSONAL REPRESENTATIVE]
------------------------------------
Name:
Position (if other than Optionee):
Received by TYSONS FINANCIAL
CORPORATION on
___________________________, 199__
By: _______________________________
THIS STOCK OPTION AGREEMENT ("Agreement") is entered into as of this
______ day of ______________, to be effective _________________________, ("Date
of Grant") by and between TYSONS FINANCIAL CORPORATION, a Virginia corporation
(the "Company") and XXXXXX X. XXXXX (the "Optionee").
WHEREAS, the Board of Directors and shareholders of the Company adopted
and subsequently amended and restated a stock option plan known as the "Tysons
Financial Corporation 1992 Stock Option Plan" (the "Plan"); and
WHEREAS, the Board has granted the Optionee a stock option to purchase
the number of shares of the Company's common stock as set forth below, and in
consideration of the granting of that stock option the Optionee intends to
remain in the employ of the Company, and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to such option in accordance with the Plan.
NOW, THEREFORE, as an employment incentive and to encourage stock
ownership, and also in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. Incorporation of the Plan. This option is granted pursuant to the
provisions of the Plan and the terms and definitions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee.
2. Grant of Option. Subject to the terms, restrictions, limitations and
conditions stated herein, the Company hereby evidences its grant to the
Optionee, pursuant to the terms of her employment agreement with the Company, of
the right and option (the "Option") to purchase all or any part of the number of
shares of the Company's Common Stock, par value $5 per share (the "Stock"), set
forth on Schedule A attached hereto and incorporated herein by reference. The
Option shall be exercisable in the amounts and at the time specified on Schedule
A. The Option shall expire and shall not be exercisable after the date specified
on Schedule A or on such earlier date as determined pursuant to Section 8, 9 or
10 hereof. Schedule A states whether, and with respect to how many shares, the
Option is intended to be an ISO.
3. Purchase Price. The price per share to be paid by the Optionee for
the shares subject to this Option (the "Exercise Price") shall be as specified
on Schedule A, which price shall be an amount not less than the Fair Market
Value [or 110% of Fair Market Value in the case of a more-than-10% owner] of a
share of Stock as of the Date of Grant (as defined in Section 11 below) if the
Option is an ISO.
4. Exercise Terms. The Optionee must exercise the Option for at least
the lesser of 100 shares or the number of shares of Purchasable Stock as to
which the Option remains unexercised. In the event this Option is not exercised
with respect to all or any part of the shares subject to this Option prior to
its expiration, the shares with respect to which this Option was not exercised
shall no longer be subject to this Option.
5. Option Non-Transferable. No ISO shall be transferable other than by
will or the laws of descent and distribution, or pursuant to a Domestic
Relations Order as defined in the Plan. During the lifetime of an Optionee, the
Option shall be exercisable only by such Optionee or the transferee under a
Domestic Relations Order (or by such person's guardian or legal representative,
should one be appointed).
6. Notice of Exercise of Option. This Option may be exercised, in whole
or in part, by a written notice (in substantially the form of the Notice of
Exercise attached hereto as Schedule B) delivered or mailed to the Company as
specified in Section 13 hereof to the attention of the President/CEO or such
other officer as the Company may designate. Any such notice shall (a) specify
the number of shares of Stock subject to the Option as to which the Option is
being exercised, (b) contain such information as may be reasonably required
pursuant to Section 12 hereof, and (c) be accompanied by (i) a certified or
cashier's check payable to the Company in payment of the total Exercise Price
applicable to such shares as provided herein, (ii) shares of Stock owned by the
Optionee and duly endorsed or accompanied by stock transfer powers, or
authorization to the Company to withhold shares otherwise issuable upon exercise
of the Option, having a Fair Market Value equal to the total Exercise Price
applicable to such shares purchased hereunder, or (iii) a combination of the
above that, when aggregated, equals the total Exercise Price applicable to such
shares purchased hereunder. Upon receipt of any such Notice of Exercise and
accompanying payment, and subject to the terms hereof, the Company agrees to
issue stock certificates for the number of shares specified in such notice
registered in the name of the person exercising this Option.
Subject to such limitations as the Board may determine, the
Company may authorize payment of the Exercise Price, in whole or in part, by
delivery of a properly executed Notice of Exercise, together with irrevocable
instructions, to: (i) a brokerage firm designated by the Optionee and acceptable
to the Company, in the Board's sole discretion, to deliver promptly to the
Company the aggregate amount of sale or loan proceeds to pay the Exercise Price
and any withholding tax obligations that may arise in connection with the
exercise, and (ii) the Company to deliver the certificates for such purchased
shares directly to such brokerage firm.
In addition to and at the time of payment of the Exercise
Price, the Optionee shall pay to the Company in cash the full amount of any
federal, state, and local income employment or other taxes required to be
withheld from the income of such Optionee as a result of such exercise;
provided, however, that in the discretion of the Board, all or any portion of
such tax obligations may, upon the irrevocable election of the Optionee, be paid
by tendering to the Company whole shares of Stock duly endorsed for transfer and
owned by the Optionee, or by authorization to the Company to withhold shares of
Stock otherwise issuable upon exercise of the Option, in either case in that
number of shares having a Fair Market Value on the date of exercise equal to the
amount of such taxes thereby being paid.
7. Adjustment in Option. The number of Shares subject to this Option,
the Exercise Price and other matters are subject to adjustment during the term
of this Option in accordance with Section 5.2 of the Plan.
8. Termination of Employment.
(a) In the event of the termination of the Optionee's
employment with the Company or any of its Subsidiaries, other than a termination
that is either (i) for cause, as defined under any employment agreement then in
effect between the Company and the Optionee, (ii) voluntary on the part of the
Optionee and without written consent of the Company, or (iii) for reasons of
death or disability, the Optionee may exercise this Option at any time within 3
months after such termination to the extent of the number of shares which were
Purchasable hereunder at the date of such termination; but in no event may such
exercise occur after the Expiration Date specified in Schedule A attached
hereto.
(b) In the event of termination of the Optionee's employment
that is either (i) for cause or (ii) voluntary on the part of the Optionee and
without the written consent of the Company, this Option, to the extent not
previously exercised, shall terminate 15 days after such termination and shall
not thereafter be or become exercisable.
(c) Retirement of the Optionee at the normal retirement date
as prescribed from time to time by the Company or any Subsidiary and termination
as a result of a change of control, as defined in any employment agreement then
in effect between the Company and the Optionee, shall be deemed to be a
termination of employment with consent for all purposes of this Option. This
Option does not confer upon the Optionee any right with respect to continuance
of employment by the Company or by any of its Subsidiaries. This Option shall
not be affected by any change of employment so long as the Optionee continues to
be an employee of the Company or one of its Subsidiaries.
9. Disabled Optionee. In the event of termination of employment because
of the Optionee's becoming disabled, as defined in Code Section 22(e)(3) and
determined within the sole discretion of the Board, the Optionee (or his or her
personal representative) may exercise this Option at any time within one year
after such termination to the extent of the number of shares which were
Purchasable hereunder at the date of such termination.
10. Death of Optionee. In the event of the Optionee's death while
employed by the Company or any of its Subsidiaries or within 15 days after a
termination of such employment (if such termination was neither (i) for cause
nor (ii) voluntary on the part of the Optionee and without the written consent
of the Company), the Optionee's executor, personal representative or the
person(s) to whom the Option shall have been transferred by will of the laws of
descent and distribution, as the case may be, may exercise this Option at any
time (a) within one year following the Optionee's death or, if earlier, (b) on
or before the Expiration Date of this Option. If the Optionee was an employee of
the Company or a Subsidiary at the time of death, this Option may be so
exercised to the extent of the number of shares that were Purchasable hereunder
at the date of death. If the Optionee's employment terminated prior to his or
her death, this Option may be exercised only to the extent of the number of
shares covered by this Option which were Purchasable hereunder at the date of
such termination.
11. Date of Grant. This Option was granted by the Board on the date set
forth in Schedule A (the "Date of Grant").
12. Compliance with Regulatory Matters. The Optionee acknowledges that
the issuance of capital stock of the Company is subject to limitations imposed
by federal and state law and the Optionee hereby agrees that the Company shall
not be obligated to issue any shares of Stock upon exercise of this Option that
would cause the Company to violate any law or any rule, regulation, order or
consent decree of any regulatory authority (including without limitation the
Securities and Exchange Commission, the Federal Reserve Board and the Office of
the Comptroller of the Currency) having jurisdiction over the affairs of the
Company. The Optionee agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Stock complies with the provisions described
by this Section 12.
13. Miscellaneous.
(a) This Agreement shall be binding upon the parties hereto
and their representatives, successors and assigns.
(b) This Agreement is executed and delivered in, and shall be
governed by the laws of, the Common of Virginia.
(c) Any requests or notices to be given hereunder shall be
deemed given, and any elections or exercises to be made or accomplished shall be
deemed made or accomplished, upon actual delivery thereof to the designated
recipient, or three days after deposit thereof in the United States mail,
registered, return receipt requested and postage prepaid, addressed, if to the
Optionee, at the address set forth below and, if to the Company, to the
attention of the President/CEO of the Company at Tysons National Bank, 0000
Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000.
(d) Except as otherwise provided in the Plan, this Agreement
may not be modified except in writing executed by each of the parties hereto.
IN WITNESS WHEREOF, the Board of Directors of the Company has caused
this Stock Option Agreement to be executed on behalf of the Company and the
Company's seal to be affixed hereto and attested by the Secretary or an
Assistant Secretary of the Company, and the Optionee has executed this Stock
Option Agreement under seal, all as of the day and year first above written.
TYSONS FINANCIAL CORPORATION OPTIONEE
By:_________________________ -----------------------
Name: Name:
Title: Address:
-----------------------
-----------------------
ATTEST:
-----------------------------------
Secretary/Assistant Secretary
[SEAL]
SCHEDULE A
TO
STOCK OPTION AGREEMENT
BETWEEN
TYSONS FINANCIAL CORPORATION
AND
XXXXXX X. XXXXX
Dated:____________________
1. Number of Shares Subject to Option: _____ Shares.
2. This Option (Check one) [X] is [ ] is not an ISO
3. Option Exercise Price. $____ per Share. (If an ISO, insert a price
which is at least 100% of the Fair Market Value, or for a more-than-10%
owner, at least 110% of the Fair Market Value.)
4. Date of Grant: _________________, 1996
5. Option Vesting Schedule:
Check one:
( X ) Options are exercisable with respect to all shares on
or after the date hereof
( ) Options are exercisable with respect to the number of
shares indicated below on or after the date indicated
next to the number of shares:
No. of Shares Vesting Date
6. Option Expiration Date:
Check one:
( X ) All options expire and are void unless exercised on
or before _____________. (If an ISO, insert a date
that is no later than the day before the 10th
anniversary of the Grant Date or, for an ISO granted
to a more-than-10% owner, the 5th such anniversary.)
( ) Options expire and are void unless exercised on or
before the date indicated next to the number of
shares:
SCHEDULE B
NOTICE OF EXERCISE
The undersigned hereby notifies Tysons Financial Corporation (the
"Company") of this election to exercise the undersigned's stock option, in full
or part, to purchase ___________ shares (no less than 100, unless exercising in
full) of the Company's common stock, par value $5 per share (the "Common
Stock"), pursuant to the Stock Option Agreement (the "Agreement") between the
undersigned and the Company dated _____________________.
Accompanying this Notice is (1) a certified or a cashier's check in the
amount of $___________ payable to the Company, and/or (2) ___________ shares of
the Company's Common Stock presently owned by the undersigned and duly endorsed
or accompanied by stock transfer powers, having an aggregate Fair Market Value
(as defined in the Tysons Financial Corporation 1992 Stock Option Plan) as of
the date hereof of $______________. Such amounts are equal, in the aggregate, to
the purchase price per share set forth in Schedule A of the Agreement multiplied
by the number of shares being purchased hereby (in each instance subject to
appropriate adjustment pursuant to Section 7 of the Agreement).
In the event that the amounts in (1) and (2) above are not equal, in
the aggregate, to the purchase price per share set forth in Schedule A of the
Agreement multiplied by the number of shares being purchased hereby (in each
instance subject to appropriate adjustment pursuant to Section 7 of the
Agreement), I hereby authorize the Company to withhold such number of shares of
the Company's Common Stock otherwise issuable upon this exercise, having an
aggregate Fair Market Value sufficient in amount as of the date hereto to equal
the excess, if any, of such total purchase price over the aggregate amounts in
(1) and (2) above.
IN WITNESS WHEREOF, the undersigned has set his hand and seal,
this _____ day of _________________, 19___.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR OR
PERSONAL REPRESENTATIVE]
Name:
Position (if other than Optionee):
Received by TYSONS FINANCIAL CORPORATION on
___________________________, 199_____
By:_________________________________
AMENDMENT TO EMPLOYMENT AGREEMENT
THIS AMENDMENT TO EMPLOYMENT AGREEMENT ("Amendment") is effective
this 21st day of April, 1997, by and between TYSONS NATIONAL BANK and TYSONS
FINANCIAL CORPORATION (collectively the "Employer") and XXXXXX X.
XXXXX ("Employee").
WHEREAS, Employer and Employee entered into an Employment
Agreement ("Agreement") dated October 17, 1996; and
WHEREAS, Employer and Employee are desirous of amending the
Agreement in accordance with the terms and conditions set forth herein,
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the recitals set forth above, which are hereby incorporated by reference
herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Paragraph 3.3 of the Agreement is hereby deleted in its
entirety and the following shall be substituted in its place:
"3.3 Short Term Performance Bonus. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to annual targets for pre-tax earrings
("Earnings") and growth in total annual average assets ("Asset Growth")
contained in the annual operating budget adopted by the Bank Board, in
consultation with the Executive, the Executive shall be entitled to receive a
short term performance bonus ("Short Term Performance Bonus"), in cash as a
percentage of Base Compensation, payable within thirty (30) days after the
completion of the year and financial statements as follows, with Earnings and
Asset Growth carrying a fifty percent (50%) weight and the payout between 15%
and 30% being prorated on the basis of the percentage of performance level:
payout performance level
------ -----------------
15% 100%
20% 110%
30% 125% or more
For example, assuming that the budget targets for the year in question were
$2,000,000 in Earnings and Asset Growth of $20,000,000 and the actual levels
were $2,100,000 in Earnings (105%) and $20,600,000 in Asset Growth (103%) and
Base Compensation for
the year in question was $140,000, the Short Term Performance Bonus would be
$23,800, calculated as follows:
Base
Target Compensation Weight Payout Bonus
-------- --------------- ------- ------- -------
Asset Growth ($140,000) x (.5) x (16.5%) = $11,550
Earnings ($140,000) x (.5) x (17.5%) = $12,250
-------
Total $23,800"
2. Paragraph 3.4 of the Agreement is hereby deleted in its
entirety and the following shall be substituted in its place:
"3.4 Long Term Performance Bonus. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for pre-tax earnings ("Earnings")
and growth in total annual average assets ("Asset Growth") contained in the
annual operating budget adopted by the Bank Board, in consultation with the
Executive, the Executive shall be entitled to receive a long term performance
bonus ("Long Term Performance Bonus"), in the form of stock options for a dollar
amount of shares calculated as a percentage of Base Compensation, to be awarded
within thirty (30) days after the completion of the year end financial
statements as follows, with Earnings and Asset Growth carrying a fifty percent
(50%) weight and the payout between .50 and 1.00 being prorated on the basis of
the percentage of performance level:
payout performance level
------- ------------------
.50 100%
.75 110%
1.00 125% or more
Such stock options shall constitute incentive stock options defined under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") and
shall be issued under the 1992 Stock Option Plan, as amended as of the issuance
date, or any successor stock option plan or plans (the "Plan"), at an exercise
price equal to the fair market value of the underlying shares at the issuance
date, under terms and conditions substantially in the form of the Stock Option
Grant Agreement attached hereto as Exhibit A.
For example, assuming that the budget targets for the year in question were
$2,000,000 in Earnings and Asset Growth of $20,000,000 and the actual levels
were $2,260,000 in Earnings (113%) and $20,400,000 in Asset Grown (102%), Base
Compensation for the year in question was $140,000, and the price of the shares
of common stock was $12 per share, the Long Term Performance Bonus would be an
award of the option to purchase 7875 shares at $12 per share, calculated as
follows:
Base
Target Compensation Weight Payout Bonus
------- ------------- ------ ------ ------
Asset Growth ($140,000) x (.5) x (.55) = $38,550
Earnings ($140,000) x (.5) x (.80) = $56,000
-------
Total $94,500
Total = $94,500 + $12 per share = 7875 option shares."
3. Except as set forth herein, all terms and conditions of the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have affixed their hands and seals to
this Amendment on the date first above written.
EMPLOYEE:
----------------------------------
Xxxxxx X. Xxxxx
EMPLOYER:
TYSONS FINANCIAL CORPORATION
By:_________________________________
Xxxxxxx Xxxxxxxx, Chairman
TYSONS NATIONAL BANK
By:_________________________________
J. Xxxxxxx Xxxxxxx, Chairman
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