Exhibit 10
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, entered into as of the 28th day of February, 2003, is by
and between Southern Financial Bancorp, Inc., a Virginia corporation (the
"Company"), and R. Xxxxxxxx Xxxxxx (the "Executive").
WITNESSETH:
WHEREAS, the Executive is presently the duly elected and acting President
of the Company and, as such, is a key executive officer of the Company whose
continued dedication, availability, advice and counsel to the Company is deemed
important to the Board of Directors of the Company, the Company and its
shareholders;
WHEREAS, the Board has determined that it is in the best interests of the
Company and its shareholders to assure that the Company will have the continued
dedication of the Executive, notwithstanding the possibility, threat or
occurrence of a Change of Control (as defined herein);
WHEREAS, the Board believes it is imperative (i) to diminish the inevitable
and significant distractions of Executive and dilution of the time of Executive,
by virtue of the personal uncertainties and risks created by a pending or
threatened Change in Control, (ii) to encourage Executive's full attention and
dedication to the Company currently and in the event of any threatened or
pending Change in Control and (iii) to provide Executive with compensation
arrangements in the event of a Change in Control which provide Executive with
financial security, which are competitive with those of other financial
institutions; and
WHEREAS, in order to accomplish the objectives described in the three
immediately preceding recitals, the Board has approved this Agreement and
authorized its execution and delivery on the Company's behalf to the Executive;
NOW, THEREFORE, to assure the Company of the Executive's continued
dedication, the availability of his advice and counsel to the Board of Directors
of the Company, and to induce the Executive to remain and continue in the employ
of the Company and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Executive
hereby agree as follows:
1. CERTAIN DEFINITIONS
1.1 Defined Terms. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) Accrued Obligations. The term "Accrued Obligations" shall have
the meaning ascribed to such term in Section 2.3(a) of this Agreement.
(b) Additional Compensation. The term "Additional Compensation" shall
mean, in addition to the Base Salary, the following:
(i) all benefits under:
(1) any and all welfare benefit and similar employee benefit
plans, programs, arrangements, or policies that are made
available by the Company or any of its affiliates to Executive
immediately prior to the occurrence of a Change in Control,
including, but not limited to, any hospitalization, medical,
prescription, dental, disability, salary continuance, individual
life insurance, executive life insurance, group life insurance,
accidental death insurance, and travel accident insurance plans,
programs, arrangements, and policies; and
(2) any and all bonus, incentive, savings, retirement,
profit sharing, pension, stock option, restricted stock, employee
stock ownership, supplemental executive retirement and other
employee benefit plans, programs, arrangements, and policies that
are made available by the Company or any of its affiliates to
Executive immediately prior to the occurrence of a Change in
Control; and
(ii) annual vacations and sick leave made available by the
Company or any of its affiliates to Executive immediately prior to the
occurrence of a Change in Control; and
(iii) fringe benefits in accordance with the fringe benefit
policies of the Company or any of its affiliates made available by the
Company or any of its affiliates to Executive immediately prior to the
occurrence of a Change in Control.
(c) Affiliate. The term "affiliate" or "affiliates" shall mean, when
used with respect to any specified entity, individual, or other person, any
other entity, individual, or other person which, directly or indirectly,
through one or more intermediaries controls, or is controlled by, or is
under common control with such specified entity, individual or person.
(d) Base Salary. The term "Base Salary" shall mean the per annum base
salary payable by the Company to Executive as in effect immediately prior
to employee's termination.
(e) Cause. The term "Cause" shall have the meaning ascribed to such
term in Section 2.5 of this Agreement.
(f) Change in Control. The term "Change in Control" shall have the
meaning ascribed to such term in Section 2.6 of this Agreement.
(g) Code. The term "Code" shall mean the Internal Revenue Code of
1986, as amended.
(h) Disabled. The term "Disabled" shall mean 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 Company or its insurers, and acceptable to the
Employee or her legal representative, which consent shall not be
unreasonably withheld or (ii) disability as defined in the policy of
disability insurance maintained by the Company or its Affiliates for the
benefit of the Employee, whichever shall be more favorable to the Employee.
Notwithstanding any other provision of this Agreement, the Company shall
comply with all requirements of the Americans with Disabilities Act, 42
U.S.C. (S)12101 et. seq.
(i) Good Reason. The term "Good Reason" shall have the meaning
ascribed to such term in Section 2.4(a) of this Agreement.
(j) Successor Entity. The term "Successor Entity" shall have the
meaning ascribed to such term in Section 2.4(a)(viii)(B) of this Agreement.
(k) Term. The term "Term" shall have the meaning ascribed to such term
in Section 2.1 of this Agreement.
(l) Other Terms. Other capitalized terms defined elsewhere herein
shall have the meanings ascribed to them in the definitions therefor
appearing elsewhere herein.
2. TERM AND TERMINATION
2.1 Term. The term of this Agreement shall be for five (5) years
commencing on the Effective Date, subject to renewal for an additional five (5)
years upon approval of the Compensation Committee of the Company's Board of
Directors prior to the end of the initial five-year term (including any renewal,
the "Term"); provided however, that if a Change in Control occurs during the
Term, the Term shall automatically be adjusted to end on the second anniversary
of such Change in Control.
2.2 Termination of Employment.
(a) If a Change in Control occurs during the Term of the Agreement,
Executive's employment with the Company may terminate on or after such
Change in Control and prior to the end of the Term upon the occurrence of:
(i) Thirty (30) days after written notice of termination is
given by either party to the other; or
(ii) Executive's death or, at the Company's option, upon
Executive's becoming Disabled.
-2-
(b) Any notice of termination given by the Company to Executive under
Section 2.2(a) above shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for a termination for Cause. Any
notice of termination given by Executive to the Company under Section
2.2(a) above shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for a resignation for Good Reason.
2.3 Obligations of the Company Upon Termination on or after a Change In
Control.
(a) Cause; Without Good Reason. If the Company terminates Executive's
employment with the Company on or after the occurrence of a Change in
Control with Cause pursuant to Section 2.2(a) hereof, or if Executive
terminates his employment with the Company on or after the occurrence of a
Change in Control without Good Reason pursuant to Section 2.2(a) hereof,
Executive's employment with the Company shall terminate without further
obligations to Executive, other than those obligations owing or accrued to,
vested in, or earned by Executive through the date of termination,
including, but not limited to:
(i) to the extent not theretofore paid, the Base Salary in
effect at the time of such termination through the date of
termination; and
(ii) in the case of compensation previously deferred by
Executive, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and accrued
vacation pay, if any, not yet paid by the Company; and
(iii) all other amounts or benefits owing or accrued to, vested
in or earned by Executive through the date of termination under the
then existing or applicable plans, programs, arrangements, and
policies of the Company and its affiliates, including, but not limited
to, the Additional Compensation;
such obligations owing or accrued to, vested in, or earned by Executive
through the date of termination, including, but not limited to, such
amounts and benefits specified in clauses (i), (ii), and (iii) of this
sentence, being hereinafter collectively referred to as the "Accrued
Obligations." The aggregate amount of such obligations owing or accrued to,
vested in, or earned by Executive through the date of termination,
including, but not limited to, the Accrued Obligations, shall be paid or
caused to be paid by the Company to Executive in accordance with the plans,
programs or agreements under which the Accrued Obligations were earned.
(b) Good Reason; Without Cause. If Executive terminates his
employment with the Company on or after the occurrence of a Change in
Control with Good Reason pursuant to Section 2.2(a) hereof, or if the
Company terminates Executive's employment with the Company without Cause on
or after the occurrence of a Change in Control pursuant to Section 2.2(a)
hereof, the Company shall pay the aggregate of the following amounts to
Executive in one lump sum within thirty (30) days after the date of such
termination:
(i) to the extent not theretofore paid, Executive's Base Salary
in effect at the time of such termination (but prior to giving effect
to any reduction therein which precipitated such termination, if any)
through the date of termination; and
(ii) to the extent not theretofore paid, any bonus earned by
Executive (but prior to giving effect to any reduction therein which
precipitated such termination, if any) through the date of
termination; and
(iii) an amount equal to (a) the sum of two (2) times Executive's
Base Salary in effect at the time of such termination (but prior to
giving effect to any reduction therein which precipitated such
termination, if any); provided; however, that in the event Executive
resigns or is terminated pursuant to this Section 2.3(b) following a
Change in Control, Executive shall receive an amount equal to
Executive's Base Salary through the Term of this Agreement and (b) an
amount equal to the last bonus paid to the Executive before his
employment terminates, multiplied by a fraction, the numerator of
which is the number of days that elapse between January 1 of the year
in which his employment terminates and the date his employment
terminates, and the denominator of which is three hundred sixty-five
(365);
-3-
(iv) in the case of compensation previously deferred by
Executive, all amounts previously deferred (together with any accrued
interest thereon) and not yet paid by the Company, and accrued
vacation pay, if any, not yet paid by the Company; and
(v) in accordance with the terms of each such plan, program,
arrangement or policy, all other amounts or benefits owing or accrued
to, vested in, or earned by Executive through the date of termination
under the then existing or applicable plans, programs, arrangements,
and policies of the Company and its affiliates, including, but not
limited to, all Additional Compensation; and
(vi) any and all other Accrued Obligations not otherwise
described in this Section 2.3(b).
(c) Death. If Executive's employment is terminated on or after the
occurrence of a Change in Control under Section 2.2(b) hereof by reason of
Executive's death, the Company shall pay to Executive's legal representatives
the full amount of the obligations owing or accrued to, vested in, or earned by
Executive through the date of Executive's death, including, but not limited to,
the Accrued Obligations in accordance with the plans, programs, or agreements
under which the Accrued Obligations were earned. Anything in this Agreement to
the contrary notwithstanding, Executive's family shall be entitled to receive
benefits provided by the Company and any of its affiliates to surviving families
under the then existing or applicable plans, programs, or arrangements and
policies of the Company and its affiliates.
(d) Disability. If Executive's employment is terminated on or after the
occurrence of a Change in Control under Section 2.2(b) hereof by reason of
Executive becoming Disabled, the Company shall pay to Executive or Executive's
legal representative the full amount of the obligations owing or accrued to,
vested in, or earned by Executive through the date of termination, including,
but not limited to, the Accrued Obligations in accordance with the plans,
programs, or agreements under which the Accrued Obligations were earned.
2.4 Definition of Good Reason.
(a) As used in this Agreement, the term "Good Reason" means a good
faith determination by Executive that any one or more of the following
events has occurred on or after the occurrence of a Change in Control:
(i) the assignment of authorities, duties or responsibilities
to the Executive (including offices, titles, reporting requirements
and supervisory functions) which are materially different from the
Executive's authorities, duties or responsibilities immediately prior
to the Change in Control, without his express written consent;
(ii) the relocation of Executive's place of employment to a
location outside of the greater Washington, D.C. metropolitan area,
except for required travel on Company business to an extent
substantially equivalent to Executive's business travel obligations
immediately prior to the Change in Control; or
(iii) any reduction by the Company of the Executive's Base
Salary, or a material reduction in Executive's bonus or other
incentive benefits from those in effect immediately prior to the
Change in Control;
(iv) the failure of the Company to continue in effect
Executive's participation in the Company's employee benefit plans,
programs, arrangements and policies (including paid vacations), at a
level substantially equivalent in value to and on a basis consistent
with the relative levels of participation of other similarly
positioned employees; or
(v) the failure of the Company to obtain from a successor
(including a successor to a material portion of the business or assets
of the Company) a satisfactory assumption in writing of the Company's
obligations under this Agreement; or
(vi) the failure of the Company to continue to provide Executive
with office space, related facilities and support personnel
(including, but not limited to, administrative and secretarial
assistance) that are both commensurate in all material respects with
Executive's responsibilities to and position with the
-4-
Company immediately prior to the Change in Control and not materially
dissimilar to the office space, related facilities and support
personnel provided to other key executive officers of the Company; or
(vii) the Company notifies Executive of the Company's intention
not to observe or perform one or more of the obligations of the
Company under this Agreement; or
(viii) the Company breaches any provision of this Agreement and
such breach is not cured within thirty (30) days after the Company's
receipt of notice thereof from Executive.
(b) If, after the occurrence of a Change in Control, Executive
receives a written description from the Company of the nature of
Executive's authorities, duties, responsibilities, status, salary, bonus
and other employee benefits, or job location, and Executive accepts in
writing such new authorities, duties, responsibilities, status, salary,
bonus and other employee benefits, or job location ("New Office") with the
Company without determining that the New Office causes a Good Reason as set
forth in Section 2.4(a), then for the remaining Term the New Office shall
be the authorities, duties, responsibilities, status, salary, bonus and
other employee benefits, or job location to be used by Executive in
determining whether Good Reason occurs thereafter pursuant to Section
2.4(a).
2.5 Definition of Cause. The Board of Directors of the Company may, in its
sole discretion, terminate the Executive's employment for Cause. For the
purposes of this Agreement, "Cause" shall mean the occurrence of either of the
following:
(a) the Executive's conviction of, or plea of guilty or nolo
contendere to, a felony or a crime of falsehood or involving moral
turpitude; or
(b) the willful failure by the Executive to substantially perform
duties for the Company (other than a failure resulting from the Executive's
incapacity as a result of disability) which willful failure results in
demonstrable material injury and damage to the Company. Notwithstanding the
foregoing, the Executive's employment shall not be deemed to have been
terminated for Cause if this termination took place as a result of:
(i) questionable judgment on the part of the Executive;
(ii) any act or omission believed by the Executive in good faith
to have been in or not opposed to the best interests of the Company;
or
(iii) any act or omission in respect of which a determination
could properly be made that the Executive met the applicable standard
of conduct prescribed for indemnification or reimbursement or payment
of expenses under either the Company's Articles of Incorporation or
the laws of Virginia as in effect at the time of the act or omission.
No act or omission to act on the Executive's behalf in reliance upon an opinion
of counsel to the Company or counsel to the Executive shall be deemed to be
willful. Notwithstanding the foregoing, the Executive shall not be deemed to
have been terminated for Cause unless and until there shall have been delivered
to her a copy of a certification by a majority of the non-officer members of the
Board of Directors of the Company finding that, in the good faith opinion of
such majority, the Executive was guilty of conduct which is deemed to be Cause
and specifying the particulars thereof in detail, after reasonable notice to the
Executive and an opportunity for her, together with his counsel, to be heard
before such majority.
2.6 Change in Control. As used in this Agreement, the term "Change in
Control shall mean the occurrence with respect to the Company of any of the
following events:
(a) any person, entity or group (within the meaning of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), other than (i) the Company (or one of its subsidiaries) or (ii) any
employee benefit plan sponsored by the Company (or one of its
subsidiaries), shall become the beneficial owner (as such term is defined
in Rule 13d-3 promulgated under the Exchange Act), directly or indirectly,
of 50% or more of the outstanding shares of common stock of the Company or
50% or more of the combined voting power of the then outstanding securities
of the Company (as determined under paragraph (d) of Rule 13d-3 promulgated
under the Exchange Act, in the case of rights to acquire common stock or
other securities);
-5-
(b) the shareholders of the Company shall approve any liquidation or
dissolution of the Company;
(c) the shareholders of the Company shall approve a merger,
consolidation, reorganization, recapitalization, exchange offer,
acquisition or disposition of assets or other transaction after the
consummation of which any person, entity or group (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) would become the beneficial
owner (as such term is defined in Rule 13d-3 promulgated under the Exchange
Act), directly or indirectly, of 50% or more of the outstanding shares of
common stock of the Company or 50% or more of the combined voting power of
the then outstanding securities of the Company (as determined under
paragraph (d) of Rule 13d-3 promulgated under the Exchange Act, in the case
of rights to acquire common stock or other securities);
(d) the transfer of all or substantially all of the assets or
properties of the Company or Southern Financial Bank, other than to an
affiliate of the Company;
(e) individuals who constitute the Board on the date hereof
("Incumbent Board") cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the
date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least two-thirds of the
directors comprising the remaining members of the Incumbent Board (either
by a specific vote or by approval of the proxy statement of the Company in
which such person is named as a nominee for director, without objection to
such nomination) shall be, for purposes of this clause (e), considered as
though such person were a member of the Incumbent Board; or
(f) a recapitalization or other transaction or series of related
transactions occurs which results in a decrease by 50% or more in the
aggregate percentage ownership of the then outstanding common stock of the
Company or the combined voting power of the outstanding securities of the
Company held by the shareholders of the Company immediately prior to giving
effect thereto (on a primary basis or on a fully diluted basis after giving
effect to the exercise of stock options and warrants).
2.7 Legal Fees and Expenses. If Executive shall prevail in any contest by
the Company or others contesting the validity or enforcement of, or liability
under, any term or provision of this Agreement, the Company shall pay any and
all reasonable attorneys', accountants' and experts' fees and expenses and court
costs incurred by Executive as a result of any such contest. Otherwise, each
party shall bear his, her or its own expenses in connection with any such
contest.
2.8 Non-exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future participation in any benefit, bonus,
incentive or other plan, program, arrangement or policy provided by the Company
or any of its affiliates (including, but not limited to, any plan, program,
arrangement or policy constituting Additional Compensation) and for which
Executive and/or Executive's family may qualify, nor shall anything herein limit
or otherwise affect such rights as Executive and/or Executive's family may have
under any other agreements with the Company or any of its affiliates. Amounts
which are vested benefits or which Executive and/or Executive's family is
otherwise entitled to receive under any plan, program, arrangement, or policy of
the Company or any of its affiliates (including, but not limited to, any plan,
program, arrangement or policy constituting Additional Compensation) at or
subsequent to the date of termination of Executive's employment under this
Agreement shall be payable in accordance with such plan, program, arrangement or
policy.
2.9 Full Payment; No Mitigation Obligation. The Company's obligation to
make the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any set-off, counterclaim,
recoupment, defense or other claim, right or action which the Company may have
against Executive or others. In no event shall Executive be obligated to seek
other employment or take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement.
3. GENERAL PROVISIONS
3.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia.
3.2 Assignability. This Agreement is personal to Executive and without the
prior written consent of the Company shall not be assignable by Executive other
than by will or the laws of descent and distribution. This Agreement shall inure
to the benefit of and be enforceable by Executive's legal representatives and
heirs. This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns. The Company shall require any
corporation, entity, individual or other person who is the successor (whether
direct or indirect, by purchase, merger, consolidation, reorganization, or
-6-
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform, by a written agreement in form
and substance satisfactory to Executive, all of the obligations of the Company
under this Agreement. As used in this Agreement, the term "Company" shall mean
the Company as hereinbefore defined and any successor to its business and/or
assets as aforesaid which assumes and agrees to perform this Agreement by
operation of law, written agreement, or otherwise.
3.3 Withholding. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
3.4 Entire Agreement; Amendment. This Agreement constitutes the entire
agreement and understanding between Executive and the Company and, except as
otherwise expressly provided herein, supersedes any prior agreements or
understandings, whether written or oral, with respect to the subject matter
hereof. Except as may be otherwise provided herein, this Agreement may not be
amended or modified except by subsequent written agreement executed by both
parties hereto.
3.5 Multiple Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which
together shall constitute one Agreement.
3.6 Notices. Any notice provided for in this Agreement shall be deemed
delivered upon deposit in the United States mails, registered or certified mail,
addressed to the party to whom directed at the addresses set forth below or at
such other addresses as may be substituted therefor by notice given hereunder.
Notice given by any other means must be in writing and shall be deemed delivered
only upon actual receipt.
If to the Executive: 0000 Xxxxxxxx Xxxx
Xxx Xxxxxx, Xxxxxxxx 00000
If to the Corporation: Southern Financial Bancorp, Inc.
00 X. Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
3.7 Waiver. The waiver of any breach of any term or condition of this
Agreement shall not be deemed to constitute the waiver of any breach of the same
or any other term or condition of this Agreement.
3.8 Severability. In the event any provision of this Agreement is found to
be unenforceable or invalid, such provision shall be severable from this
Agreement and shall not effect the enforceability or validity of any other
provision of this Agreement. If any provision of this Agreement is capable to
two constructions, one of which would render the provision void and the other
which would render the provision valid, then the provision shall have the
construction which renders it valid.
3.9 Other Severance Benefits. This Agreement replaces and supercedes any
and all provisions of and benefits under any other severance agreement or
program under which Executive would otherwise be entitled to severance benefits
on or after the occurrence of a Change in Control.
[Signature Page Follows]
-7-
IN WITNESS WHEREOF, the parties have executed this Agreement effective as
of the date first above written.
"EXECUTIVE"
ATTEST: _______________________ By: __________________________________
R. Xxxxxxxx Xxxxxx
SOUTHERN FINANCIAL BANCORP, INC.
ATTEST: _______________________ By: __________________________________
-8-
