Exhibit # (10)C
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT, made and entered into this day of
, 1997, by and between FIRST NATIONAL BANK, a national banking
association, with principal offices in Christiansburg, Virginia and FNB
CORPORATION, a one-bank holding company organized and existing under the laws
of the Commonwealth of Virginia which owns all of the outstanding stock of
First National Bank (collectively "First National Bank" and "FNB Corporation"
hereinafter referred to as "Employer" or "FNB"), and
, residing at
(sometimes hereinafter referred to as
"Employee").
WITNESSETH:
WHEREAS, Employee has been a principal executive of Employer for a number
of years, and in such capacity has developed an intimate and thorough
knowledge of Employer's business methods, trade secrets, and operations, as
well as personal relationships with key individual employees of Employer and
other banks and companies with which Employer does business;
WHEREAS, the retention of Employee's services for and on behalf of
Employer and/or its subsidiaries, is of material importance to the
preservation and enhancement of the value of Employer's business;
WHEREAS, Employer recognizes that, as is the case with many publicly held
corporations, the possibility of a change of control may arise and that such
possibility, and the uncertainty and questions which it may raise among
management, may result in the departure or distraction of management personnel
to the detriment of Employer and its shareholders;
WHEREAS, the Board of Directors of Employer (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the
continued attention and dedication of members of Employer's management to
their assigned duties without distraction by the possibility of a change of
control; and
WHEREAS, the Board believes it important, should Employer or its
shareholders receive a proposal for transfer of control of Employer, that
Employee be able to assess such proposal and advise the Board thereon, without
being influenced by the uncertainties of Employee's own employment status.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein set forth, Employer and Employee do hereby agree as follows:
I. Change in Control
1.1 For purposes of this Agreement, a "change in control" of Employer shall
have occurred at such time as (a) the closing of a corporate reorganization in
which the Bank becomes a subsidiary of a holding company, the majority of the
common stock of which is owned by persons who did not own the majority of the
common stock of FNB Corporation (or its successor) immediately prior to the
reorganization; (b) individuals who constitute the Board on the date hereof
(the "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 nomination for election was approved by a vote of at least three-
quarters (3/4) of the directors comprising the Incumbent Board shall be
considered as though such person were a member of the Incumbent Board for
purposes of this subsection; (c) the closing of the merger of Employer with or
into another person; or (d) the closing of the sale, conveyance or other
transfer of substantially all of the assets of Employer to another person.
1.2 For purposes of this Agreement, the term "person" shall include any
individual, corporation, partnership, group, association or other "person", as
such term is used in section 14(d) of the Exchange Act, other than Employer,
any entity in which the Employer owns a majority of the voting interest or any
employee benefit plan(s) sponsored by Employer.
1.3 In the event Employer completes an affiliation with any other
institution in which there is a change in control and, as a result of the
affiliation, the Employee occupies a position of less authority than the
current position held under the terms of this Agreement and job
responsibilities less than of FNB,
the Employee may elect to terminate employment under Section 2.2 of this
Agreement and receive the compensation as provided in Section 3.1 hereof.
II. Termination Following Change in Control
2.1 Employer recognizes that a change in control as defined in Section I
may directly affect the direction and philosophy of FNB. A change in control
may also affect Employee's responsibilities and position with the Employer.
Employee will be entitled to the compensation provided in subsection 3.1 of
Section III hereof, upon Employee's determination to terminate his employment
with Employer or upon termination by Employer or upon termination by Employer
of Employee's employment with Employer.
2.2 Any termination by Employer or by Employee following a change in
control shall be communicated by written notice of termination ("Notice of
Termination") to the other party hereto. Such Notice of Termination shall
specify the date as of which employment shall terminate ("Date of
Termination"), which Date of Termination shall not be more than sixty (60)
days from the date of the Notice of Termination.
III. Compensation Upon Termination; Other Agreements
3.1 If within twelve (12) months of the date after which a change in
control of the Employer shall have occurred, as defined in Section I above,
Employee's employment with Employer shall be terminated by the Employer or by
Employee, then Employee shall be entitled, without regard to any contrary
provisions of any Plan, to the following benefits:
(A) For a period of twelve (12) months, commencing on the Date of
Termination, Employer shall make provisions so that Employee's medical
insurance benefits, life insurance and accident insurance plan coverage and
all other welfare and retirement plan and fringe benefits associated with
Employee's employment will continue to be on terms and at levels substantially
the same as those existing on the day prior to the Date of Termination;
(B) For a period of twelve (12) months, commencing on the Date of
Termination, Employee shall receive the Annual Compensation theretofore
received by Employee from Employer. Payment shall be made each month when the
Employer's payroll is customarily paid unless Employee irrevocably elects to
receive all salary compensation due hereunder in a lump sum which shall be
paid within thirty (30) days of the Employee's election. Should Employee
elect to receive a lump sum settlement instead of monthly payments, the amount
payable shall be reduced to the present value of monthly payments by using
the one year certificate of deposit rate then in effect at FNB. For purposes
of this Agreement, "Annual Compensation" shall mean Employee's current annual
base salary immediately preceding the change in control in accordance with
Section 3.1(a) hereof.
3.2 The amount of any payment provided for in this Section III shall not
be reduced, offset or subject to recovery by the Employer by reason of any
compensation earned by Employee as a result of subsequent employment by
another employer, other than compensation from employment with a banking
institution located in any county in Virginia whose county seat lies within
fifty (50) miles by highway from Christiansburg, Virginia earned within
twelve (12) months after a change in control.
3.3 Notwithstanding the other provisions of this Section III, should
Employer terminate Employee for cause, no further compensation shall be paid
to Employee after the Date of Termination. Otherwise, Employee shall be
entitled to the full compensation provided for herein after his Termination,
whether such Termination is initiated by Employee or Employer. For purposes
of this subsection, the term "cause" shall mean personal dishonesty,
incompetence, willful misconduct, willful breach of fiduciary duty, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses), willful violation of a final cease and desist order,
willful or intentional breach or neglect of Employee's duties hereunder,
persistent negligence, or misconduct in the performance of Employee's duties.
IV. Successors; Binding Agreement
4.1 This Agreement shall inure to the benefit of and be binding upon any
corporate or other successor of Employer which shall result from a change in
control of Employer as defined in Section I hereof. Employer shall require
any such successor, by an agreement in form and substance satisfactory to
Employee, expressly to assume and agree to perform this Agreement in the same
manner and to the same extent as Employer would be required to perform if no
such succession had taken place.
4.2 This Agreement shall inure to the benefit and be enforceable by
Employee's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Employee should
die while any amount would still be payable to Employee hereunder at the time
of death of Employee, such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to Employee's devisee,
legatee or the devisee's or legatee's designee; or if there be no such
devisee, legatee or designee, to Employee's estate.
V. Fees and Expenses
5.1 Both Employer and the Employee covenant and agree that in the event
of a breach or default of either party of any of the terms of this agreement,
then the defaulting party shall reimburse the non-defaulting party for any and
all legal expenses incurred to enforce the contract, including reasonable
attorney's fees.
VI. Taxes
6.1 All payments to be made to Employee under this Agreement will be
subject to required withholding of federal, state and local income and
employment taxes.
VII. Survival
7.1 The respective obligations of, and benefits accorded, Employer and
Employee as provided in this Agreement shall survive termination of this
Agreement.
VIII. Notices
8.1 For purposes of this Agreement, notices and all other communications
provided for in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered or mailed by United States registered mail,
return receipt requested, postage prepaid and addressed to the addresses set
forth on the first page of this Agreement, provided that all notices to
Employer shall be directed to the attention of the Chairman of the Board, or
to such other addresses either party may have furnished to the other in
writing in accordance herewith; except that notice of change of address shall
be in effect only upon receipt.
IX. Miscellaneous
9.1 No provision of this Agreement may be modified, waived or discharged
unless such modification, waiver or discharge is agreed to in writing signed
by Employee and the Chairman of the Board or President of Employer (or highest
ranking executive officer of FNB other than Employee, if applicable). No
waiver by either party hereto at any time of any breach by the other party
hereto of, or of 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. No agreements or representations, oral or otherwise, express or
implied, with respect to the subject matter hereof have been made by either
party which are not expressly set forth in this Agreement.
X. Validity
10.1 The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
XI. Related Agreements
11.1 To the extent that any provision of any other agreement between
Employer or any of its subsidiaries and Employee shall limit, qualify or be
inconsistent with any provision of this Agreement, then for purposes of this
Agreement, while the same shall remain in force, the provision of this
Agreement shall control and such provision of such other agreement shall be
deemed to have been superseded, and to be of no force or effect, as if such
other agreement had been formally amended to the extent necessary to
accomplish such purpose.
XII. Counterparts
12.1 This Agreement may be executed in one or more counterparts which
shall be construed together as one constituted agreement.
XIII. Governing Law
13.1 This Agreement shall be governed according to the laws of the
Commonwealth of Virginia. Should either party bring suit to enforce the
provisions hereof, Employer and Employee expressly consent to the exclusive
jurisdiction and venue of the Circuit Court of Xxxxxxxxxx County, Virginia to
resolve such dispute.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first written above.
Employer:
First National Bank
Xxxxxx X. Xxxxx, President
FNB Corporation
Xxxxxx X. Xxxxxxxx, President
Employee:
