AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit 10.4
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT is made and entered into as of the 1st day of
March, 2007 by and between ALLIANCE BANK, a Virginia banking corporation, hereinafter called the
“Bank”, and Xxxxx X. Xxxxxxxx hereinafter called “Employee”, and provides as follows:
RECITALS
WHEREAS, the Bank and Employee entered into an employment agreement dated
March 1, 2003; and
WHEREAS, the continued employment of Employee by the Bank is in the best interests of the Bank
and Employee; and
WHEREAS, the parties have mutually agreed upon the amended terms and conditions of Employee’s
continued employment by the Bank as hereinafter set forth;
WHEREAS, the Bank and Employee wish to extend the term and modify certain provisions set out
in said agreement and to continue the services of Employee and Employee desires; and
TERMS OF AGREEMENT
NOW, THEREFORE, for and in consideration of the premises and of the mutual promises and
undertakings of the parties as hereinafter set forth, the parties covenant and agree as follows:
Section 1. Employment. (a) Employee shall be employed as the Senior Vice President of
the Bank. He shall perform such services for the Bank and/or one or more Affiliates as may be
assigned to Employee from time to time upon the terms and conditions hereinafter set forth.
(b) References in this Agreement to services rendered for the Bank and compensation and
benefits payable or provided by the Bank shall include services rendered for and compensation and
benefits payable or provided by any Affiliate. References in this Agreement to the “Bank” also
shall mean and refer to each Affiliate for which Employee performs services. References in this
Agreement to “Affiliate” shall mean any business entity that, directly or indirectly, through one
or more intermediaries, is controlled by or controls the Bank.
(c) The parties recognize that the Board of Directors of the Bank shall manage the business
affairs of the Bank and that the relationship between the Bank and Employee shall be
that of an
employer and an employee. The Board of Directors shall have the sole authority to set and
establish the hours of operation of the business and to set and establish reasonable work schedules
and standards applicable to Employee.
Section 2. Term. The term of this Agreement shall continue until March 1, 2008 unless
sooner terminated under the terms of this Agreement (the “Initial Term”). This Agreement shall be
renewed automatically for successive additional terms of one (1) year each unless either party
gives the other notice of nonrenewal at least sixty (60) days prior to the expiration of the
Initial Term or any additional term, as the case may be.
Section 3. Exclusive Service. Employee shall devote his best efforts and full time to
rendering services on behalf of the Bank in furtherance of its best interests. Employee shall
comply with all policies, standards and regulations of the Bank now or hereafter promulgated, and
shall perform his duties under this Agreement to the best of his abilities and in accordance with
standards of conduct applicable to chief executive officers of banks.
Section 4. Salary. (a) As compensation while employed hereunder, Employee, during
his faithful performance of this Agreement, in whatever capacity rendered, shall receive an annual
base salary of $152,963.00 payable on such terms and in such installments as the parties may from
time to time mutually agree upon. The Board of Directors, in its discretion, may increase
Employee’s base salary during the term of this Agreement, but in no event shall the annual base
salary be reduced.
(b) The Bank shall withhold state and federal income taxes, social security taxes and such
other payroll deductions as may from time to time be required by law or agreed upon in writing by
Employee and the Bank. The Bank shall also withhold and remit to the proper party any amounts
agreed to in writing by the Bank and Employee for participation in any corporate sponsored benefit
plans for which a contribution is required.
(c) Except as otherwise expressly set forth hereunder, no compensation shall be paid pursuant
to this Agreement in respect of any month or portion thereof subsequent to any termination of
Employee’s employment by the Bank.
Section 5. Corporate Benefit Plans. (a) Employee shall be entitled to participate in
or become a participant in any employee benefit plan maintained by the Bank for which he is or will
become eligible on such terms as the Board of Directors may, in its discretion, establish, modify
or otherwise change.
(b) The Bank shall provide Employee with a disability insurance policy providing benefits
commensurate with other employees as so amended by the Board from time to time.
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(c) The Bank shall pay the premiums on group term insurance on the life of Employee in an
amount equal to two times his base salary under a qualified group benefits plan as secured by the
Bank.
Section 6. Bonuses. Employee shall receive only such bonuses as the Board of
Directors, in its discretion, decides to pay to Employee.
Section 7. Expense Account. (a) The Bank shall reimburse Employee for reasonable and
customary business expenses incurred in the conduct of the Bank’s business. Such expenses will
include business meals, out-of-town lodging and travel expenses, and membership dues and costs to
attend meetings and conventions of business-appropriate organizations and associations. Employee
agrees to timely submit records and receipts of reimbursable items and agrees that the Bank can
adopt reasonable rules and policies regarding such reimbursement. The Bank agrees to make prompt
payment to Employee following receipt and verification of such reports.
(b) The Bank will provide Employee an allowance of up to $734.05 per month to lease an
automobile for personal and business use and will pay or reimburse Employee for all maintenance,
insurance, fuel and taxes on such automobile. The Bank shall be the lessee of the automobile.
Section 8. Vacation and Sick Leave. Employee shall be entitled to 20 days of vacation
and such sick leave as the Board of Directors may from time to time designate for all full-time
employees of the Bank.
Section 9. Termination. (a) Notwithstanding the termination of Employee’s employment
pursuant to any provision of this Agreement, the parties shall be required to carry out any
provisions of this Agreement which contemplate performance by them subsequent to such termination.
In addition, no termination shall affect any liability or other obligation of either party which
shall have accrued prior to such termination, including, but not limited to, any liability, loss or
damage on account of breach. No termination of employment shall terminate the obligation of the
Bank to make payments of any vested benefits provided hereunder or the obligations of Employee
under Sections 10, 11 and 12.
(b) Employee’s employment hereunder may be terminated by Employee upon thirty (30) days
written notice to the Bank or at any time by mutual agreement in writing.
(c) This Agreement shall terminate upon the death of Employee; provided, however, that in such
event the Bank shall pay to the estate of Employee the compensation including salary and accrued
bonus, if any, which otherwise would be payable to Employee through the end of the month in which
his death occurs.
(d) The Bank may terminate Employee’s employment other than for “Cause”, as defined in Section
9(e), at any time upon written notice to Employee, which termination shall be effective
immediately. Employee may resign thirty (30) days after notice to the Bank for
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“Good Reason”, as
hereafter defined. In the event the Employee’s employment terminates pursuant to this Section
9(d), Employee shall receive a monthly amount equal to one-twelfth (1/12) his rate of annual base
salary in effect immediately preceding such termination (“Termination Compensation”) in each month
for twelve (12) months or the remainder of the term of this Agreement, whichever is greater.
Payments of the Termination Compensation shall be made at the times such payments would have been
made in accordance with Section 4(a). Notwithstanding anything in this Agreement to the contrary,
if Employee breaches Section 10 or 11, Employee will not thereafter be entitled to receive any
further compensation or benefits
pursuant to this Section 9(d). In addition, notwithstanding anything in this Agreement to the
contrary, the Bank shall not be required to make payment of the Termination Compensation or any
portion thereof to the extent such payment is prohibited by the terms of the regulations presently
found at 12 C.F.R. part 359 or to the extent that any other governmental approval of the payment
required by law is not received.
For purposes of this Agreement, “Good Reason” shall mean:
(i) The assignment of duties to the Employee by the Bank which result in the Employee having
significantly less authority or responsibility than he has on the date hereof, without his express
written consent;
(ii) The removal of the Employee from his position as Senior Vice President ;
(iii) A reduction by the Bank of the Employee’s annual base salary (which shall also
constitute a breach of Section 4(a) hereof);
(iv) The failure of the Bank to obtain the assumption of and agreement to perform this
Agreement by any successor as contemplated in Section 13 hereof.
(e) The Bank shall have the right to terminate Employee’s employment under this Agreement at
any time for Cause, which termination shall be effective immediately. Termination for “Cause”
shall include termination for Employee’s personal dishonesty, incompetence, willful misconduct,
breach of a fiduciary duty involving personal profit, failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or similar offenses) or
final cease-and-desist order, conviction of a felony or of a misdemeanor involving moral turpitude,
misappropriation of the Bank’s assets (determined on a reasonable basis) or those of its
Affiliates, or material breach of any other provision of this Agreement. In the event Employee’s
employment under this Agreement is terminated for Cause, Employee shall thereafter have no right to
receive compensation or other benefits under this Agreement.
(f) The Bank may terminate Employee’s employment under this Agreement, after having
established the Employee’s disability by giving to Employee written notice of its intention to
terminate his employment for disability and his employment with the Bank shall terminate effective
on the 90th day after receipt of such notice if within 90 days after such receipt Employee shall
fail to return to the full-time performance of the essential functions of his position
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(and if
Employee’s disability has been established pursuant to the definition of “disability” set forth
below). For purposes of this Agreement, “disability” means either (i) disability which after the
expiration of more than 13 consecutive weeks after its commencement is determined to be total and
permanent by a physician selected and paid for by the Bank or its insurers, and acceptable to
Employee or his legal representative, which consent shall not be unreasonably withheld or (ii)
disability as defined in the policy of disability insurance maintained by the Bank or its
Affiliates for the benefit of Employee, whichever shall be more favorable to Employee.
Notwithstanding any other provision of this Agreement, the Bank shall comply with all requirements
of the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq.
(g) If Employee is suspended and/or temporarily prohibited from participating in the conduct
of the Bank’s affairs by a notice served pursuant to the Federal Deposit Insurance Act, the Bank’s
obligations under this Employment Agreement shall be suspended as of the date of service unless
stayed by appropriate proceedings. If the charges in the notice are dismissed, the Bank may in its
discretion (i) pay Employee all or part of the compensation withheld while its contract obligations
were suspended, and (ii) reinstate (in whole or in part) any of its obligations which were
suspended.
(h) If Employee is removed and/or permanently prohibited from participating in the conduct of
the Bank’s affairs by an order issued under the Federal Deposit Insurance Act or the Code of
Virginia, all obligations of the Bank under this Employment Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be affected.
(i) (1) If Employee’s employment is terminated without Cause within one year after a Change
of Control shall have occurred or if he resigns for Good Reason within one year after a Change of
Control shall have occurred, then on or before Employee’s last day of employment with the Bank, the
Bank shall pay to Employee as compensation for services rendered to the Bank and its Affiliates a
cash amount (subject to any applicable payroll or other taxes required to be withheld) equal to the
excess, if any, of 150% of Employee’s “annualized includable compensation for the base period”, as
defined in Section 280G of the Internal Revenue Code of 1986 (the “Code”), over the total amount
payable to Employee under Section 9(d); provided, however, that the Bank may pay said amounts in
equal monthly installments over the eighteen (18) months succeeding the date of termination,
payable on the first day of each such month.
(2) For purposes of this Agreement, a Change of Control occurs if, after the date of this
Agreement, (i) any person, including a “group” as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, becomes the owner or beneficial owner of Bank securities having 50% or more
of the combined voting power of the then outstanding Bank securities that may be cast for the
election of the Bank’s directors other than a result of an issuance of securities initiated by the
Bank, or open market purchases approved by the Board of Directors, as long as the majority of the
Board of Directors approving the purchases is a majority at the time the purchases are made; or
(ii) as the direct or indirect result of, or in connection with, a tender or exchange offer, a
merger or other business combination, a sale of assets, a contested election of
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directors, or any
combination of these events, the persons who were directors of the Bank before such events cease to
constitute a majority of the Bank’s Board, or any successor’s board, within two years of the last
of such transactions. For purposes of this Agreement, a Change of Control occurs on the date on
which an event described in (i) or (ii) occurs. If a Change of Control occurs on account of a
series of transactions or events, the Change of Control occurs on the date of the last of such
transactions or events.
Section 10. Confidentiality/Nondisclosure. Employee covenants and agrees that any and
all information concerning the customers, businesses and services of the Bank of which he has
knowledge or access as a result of his association with the Bank in any capacity, shall be deemed
confidential in nature and shall not, without the proper written consent of the Bank, be directly
or indirectly used, disseminated, disclosed or published by Employee to third parties other than in
connection with the usual conduct of the business of the Bank. Such information shall expressly
include, but shall not be limited to, information concerning the Bank’s trade secrets, business
operations, business records, customer lists or other customer information. Upon termination of
employment Employee shall deliver to the Bank all originals and copies of documents, forms, records
or other information, in whatever form it may exist, concerning the Bank or its business,
customers, products or services. In construing this provision it is agreed that it shall be
interpreted broadly so as to provide the Bank with the maximum protection. This Section 10 shall
not be applicable to any information which, through no misconduct or negligence of Employee, has
previously been disclosed to the public by anyone other than Employee.
Section 11. Covenant Not to Compete. During the term of this Agreement and throughout
any further period that he is an officer or employee of the Bank, and for a period of twelve (12)
months from and after the date that Employee is (for any reason) no longer employed by the Bank or
for a period of twelve (12) months from the date of entry by a court of competent jurisdiction of a
final judgment enforcing this covenant in the event of a breach by Employee, whichever is later,
Employee covenants and agrees that he will not, directly or indirectly, either as a principal,
agent, employee, employer, stockholder, co-partner or in any other individual or representative
capacity whatsoever: (i) engage in a Competitive Business anywhere within a twenty-five (25) mile
radius of any office operated by the Bank on the date Employee’s employment terminates; or (ii)
solicit, or assist any other person or business entity in soliciting, or doing business with, any
depositors or other customers of the Bank to make deposits in or to become customers of any other
financial institution conducting a Competitive Business; or (iii) induce any individuals to
terminate their employment with the Bank or its Affiliates. As used in this Agreement, the term
“Competitive Business” means all banking and financial products and services that are substantially
similar to those offered by the Bank on the date that Employee’s employment terminates.
Section 12. Injunctive Relief, Damages, Etc. Employee agrees that given the nature of
the positions held by Employee with the Bank, that each and every one of the covenants and
restrictions set forth in Sections 10 and 11 above are reasonable in scope, length of time and
geographic area and are necessary for the protection of the significant investment of the Bank in
developing, maintaining and expanding its business. Accordingly, the parties hereto agree that in
the
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event of any breach by Employee of any of the provisions of Sections 10 or 11 that monetary
damages alone will not adequately compensate the Bank for its losses and, therefore, that it may
seek any and all legal or equitable relief available to it, specifically including, but not limited
to, injunctive relief and Employee shall be liable for all damages, including actual and
consequential damages, costs and expenses, including legal costs and actual attorneys’ fees,
incurred by the Bank as a result of taking action to enforce, or recover for any breach of, Section
10 or Section 11. The covenants contained in Sections 10 and 11 shall be construed and interpreted
in any judicial proceeding to permit their enforcement to the maximum extent permitted by law.
Should a court of competent jurisdiction determine that any provision of the covenants and
restrictions set forth in Section 11 above is unenforceable as being overbroad as to time, area or
scope, the court may strike
the offending provision or reform such provision to substitute such other terms as are reasonable
to protect the Bank’s legitimate business interests.
Section 13. Binding Effect/Assignability. This Employment Agreement shall be binding
upon and inure to the benefit of the Bank and Employee and their respective heirs, legal
representatives, executors, administrators, successors and assigns, but neither this Agreement, nor
any of the rights hereunder, shall be assignable by Employee or any beneficiary or beneficiaries
designated by Employee. The Bank will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the business, stock or
assets of the Bank, by agreement in form and substance reasonably satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in its entirety. Failure of the Bank to obtain
such agreement prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Employee to the compensation described in Section 9(d). As used in
this Agreement, “Bank” shall mean Alliance Bankshares Bank, a Virginia Bank, and any successor to
its respective business, stock or assets as aforesaid which executes and delivers the agreement
provided for in this Section 13 or which otherwise becomes bound by all the terms and provisions of
this Agreement by operation of law.
Section 14. Governing Law. This Employment Agreement shall be subject to and
construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to its
principles of conflict of laws.
Section 15. Litigation. In the event of any dispute between the parties concerning
this Agreement, each party shall be responsible for obtaining counsel at its own expense; however,
in the event that the Bank does not substantially prevail in any litigation arising under this
Agreement, the Bank shall promptly reimburse the Employee for all reasonable attorneys’ fees and
expenses incurred in connection with such litigation.
Section 16. Invalid Provisions. The invalidity or unenforceability of any particular
provision of this Employment Agreement shall not affect the validity or enforceability of any other
provisions hereof, and this Employment Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
Section 17. Notices. Any and all notices, designations, consents, offers, acceptance
or any other communications provided for herein shall be given in writing and shall be deemed
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properly delivered if delivered in person or by registered or certified mail, return receipt
requested, addressed in the case of the Bank to its registered office or in the case of Employee to
his last known address.
Section 18. Entire Agreement.
(a) This Employment Agreement constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersedes any and all other agreements, either oral or in
writing, among the parties hereto with respect to the subject matter hereof.
(b) This Employment Agreement may be executed in one or more counterparts, each of which shall
be considered an original copy of this Agreement, but all of which together shall evidence only one
agreement.
Section 19. Amendment and Waiver. This Employment Agreement may not be amended except
by an instrument in writing signed by or on behalf of each of the parties hereto. No waiver of any
provision of this Employment Agreement shall be valid unless in writing and signed by the person or
party to be charged.
Section 20. Case and Gender. Wherever required by the context of this Employment
Agreement, the singular or plural case and the masculine, feminine and neuter genders shall be
interchangeable.
Section 21. Captions. The captions used in this Employment Agreement are intended for
descriptive and reference purposes only and are not intended to affect the meaning of any Section
hereunder.
IN WITNESS WHEREOF, the Bank has caused this Employment Agreement to be signed by its duly
authorized officer and Employee has hereunto set his hand and seal on the day and year first above
written.
| ALLIANCE BANK |
||||
| By: | /s/ Xxxxxx X. Xxxxx, Xx. | |||
| Title: President & CEO | ||||
| EMPLOYEE |
||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
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