EXHIBIT 10.2(f)
THIS EMPLOYMENT AGREEMENT made and entered into this 18th day of December,
2002 between Bank of Bank of Goochland, N.A. ("Employer"), a national banking
association, and M. Xxxxxx XxXxxx ("Employee").
WHEREAS, Employer is a national banking association with its headquarters
located in Goochland County, Virginia ("Bank"); and,
WHEREAS, Employee has agreed to serve as President & Chief Executive
Officer of the Bank; and,
WHEREAS, the parties wish to establish the terms and conditions of
Employee's employment.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth herein, the parties hereby agree as follows:
1. RELATIONSHIP AND DUTIES BETWEEN THE PARTIES.
1.1 Bank of Goochland, N.A.
Employer agrees to employ Employee on the effective date of this
Agreement as President & Chief Executive Officer of the Bank, and to perform
such services and duties as the board of directors of the Bank may, from time to
time, designate during the term hereof. Subject to the terms and conditions
hereof, Employee will perform such duties and exercise such authority as are
customarily performed and exercised by persons holding such office, subject to
the direction of the Chairman and the Bank's Board of Directors ("Bank Board").
1.1.2 Employee shall serve on the Bank Board and as a member of
its Executive Committee and such other committees as the Bank Board may
designate, subject to the terms hereof.
1.2 Employee Undertakings.
1.2.1 Employee accepts such employment and shall devote his full
time, attention, and best efforts to the diligent performance of his duties
herein specified and as an officer of the Bank. While employed by Employer, the
Employee will not, without the prior express consent of the Chairman of the
board of directors, accept employment with any other individual, corporation,
partnership, governmental authority or other entity, or engage in any other
venture for profit which Employer or the Bank Board may consider to be in
conflict with the best interests of the Bank or to be in competition with the
Bank, or which may interfere in any way with the Employee's performance of his
duties hereunder. It is understood that Employee does have the right to
participate in passive investments including income producing real estate that
do not conflict with the interest of the Bank.
1.2.2 Employer shall not require the Employee, as a part of his
duties, to perform or to participate in any activity which constitutes a
violation of any state or federal law, rule, ordinance or regulation.
2. DEFINITIONS.
2.1 "Complete disability" shall mean the inability of Employee, due
to illness, accident, or any other physical or mental incapacity, completely to
fulfill his obligations hereunder for an aggregate of ninety (90) days within
any period of 180 consecutive days during the term hereof.
2.2 "Cause" shall include, without limitation: dishonesty; theft;
conviction of a crime, which is either (a) a felony, or (b) a misdemeanor
involving moral turpitude or financial impropriety; unethical business conduct;
activity which is contrary to the Bank's interests; gross or repeated negligence
in carrying out Employee's duties; or material violation of Employee's
obligations hereunder.
2.3 "Employer" shall be deemed synonymous with the terms "Bank" or
"Bank Board", whenever the context so requires.
3. TERMS OF EMPLOYMENT
3.1 Term.
3.1.1 The term of Employee's employment with the Bank shall be
for three (3) years from the effective date of this agreement (the "Term");
provided, however, the Bank may, at its option and in its sole discretion, not
later than 30 days prior to the end of the Term, renew the Term for an
additional, successive two (2) year period (the "Renewal Term") subject to the
same terms and conditions as are applicable during the initial Term, and subject
to such appropriate increases in salary and other benefits as the parties may
agree upon, unless terminated earlier pursuant to the terms hereof.
3.1.2 Employee's employment pursuant to this Agreement shall be
terminated by the first to occur of any of the following:
3.1.2.1 The death of Employee;
3.1.2.2 The complete disability of Employee,
3.1.2.3 The discharge of Employee by Employer for cause.
Notwithstanding the foregoing, the Bank may terminate immediately the Employee's
employment with the Bank with Cause (as defined herein) upon written notice to
the Employee. For purposes of this agreement, in addition to the provisions of
Paragraph 2.2, above, Cause will be defined to include:
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3.1.3 Employee's repeated failure to perform satisfactorily
Employee's job duties under this agreement and as determined by the Board of
Directors.
3.1.4 Employee's failure to comply with all material applicable
laws in performing Employee's job duties or in directing the conduct of
Employer's business.
3.1.5 Employee's commission of any felony or intentionally
fraudulent or other act against Employer, or its affiliates, employees, agents
or customers which demonstrates Employee's untrustworthiness or lack of
integrity.
3.1.6 Employee's participation in any activity which is directly
competitive with or intentionally injurious to Employer.
3.1.7 Discharge for "cause" will require a two-thirds majority
vote of the Bank Board, exclusive of the Employee.
3.1.7 Termination of Employee's employment for cause shall
include termination as an employee, officer and director of the Bank.
Except as expressly provided herein, all compensation, benefits and
the like otherwise payable to Employee with respect to periods after his
cessation of employment shall cease to be due and owing for periods after his
cessation of employment for any reason.
3.2 Termination Without Cause. Employee shall serve at the pleasure
of the Bank Board. Employer may terminate this Agreement without cause at any
time upon an affirmative vote of two-thirds (2/3) of all members of the Bank
Board, whether or not in attendance at the meeting or voting upon the issue. In
the event of such termination without cause by Employer, Employee shall be paid
a severance payment equal to Employee's annual base salary in effect at the time
of termination or the remaining salary represented in this contract, whichever
is less. Such severance pay shall be paid in a lump sum, less applicable tax
withholdings, not later than thirty (30) days following the effective date of
termination. Employee shall not be entitled to any performance bonus for the
year of termination, except as may be awarded in the sole discretion of the Bank
Board.
4. COMPENSATION
For all services which Employee may render to Employer during the term
hereof, Employer shall pay to Employee, subject to such deductions as may be
required by law, according to the schedule set out below:
4.1 Base Salary. From the effective date hereof, Employee shall
receive for the term of this Agreement a salary based on an annual rate of
$116,000, payable in equal monthly installments, subject to such deductions as
may be required by law. The Employee will receive performance reviews at least
annually at the end of each fiscal year from the Chairman of the Bank Board, and
the Employee's base salary may be increased but not decreased at the sole
discretion of the Bank Board.
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4.2 Change of Control. In addition, in the event of a Change of
Control (as defined below) of the Bank's parent company during the term of this
Agreement or any renewals thereof and Employee's employment terminates for any
reason within one(1) year of such action, Employee shall be entitled to a
severance pay equal to three times his annual salary in effect at that time.
Change of Control shall mean (A) the acquisition of the Bank's parent company by
another Person (as defined below) by means of any transaction or series of
related transactions (including without limitation any reorganization, share
exchange, merger or consolidation, whether of the Bank's parent company with or
into any other Person or Persons or of any other Person or Persons with or into
the Bank's parent company, but excluding any merger effected exclusively for the
purpose of changing the domicile of the Bank's parent company and excluding any
share exchange, consolidation or merger following which the stockholders of the
Bank's parent company who immediately prior to such share exchange,
consolidation or merger held more than 50% of the equity (or voting power) of
the Bank's parent company hold more than 50% of the equity (or voting power)of
the entity surviving such share exchange, consolidation or merger or any entity
controlling such surviving entity; (B) the sale or transfer by the Bank's parent
company of all or substantially all its assets; or (C) a transaction or series
of transactions in which a Person or group of Persons (other than an existing
shareholder of the Bank's parent company or any Affiliate (as defined below)
thereof directly or indirectly acquires beneficial ownership of more than 50% of
the voting power of the Bank's parent company but excluding any registered
offerings of the stock of the Bank's parent company. Person shall mean an
individual, corporation, partnership, association, trust, limited liability
company or any other entity or organization. Affiliate shall mean, with respect
to any Person, any other Person controlling, controlled by or under common
control with such Person. The severance payment due pursuant to this Paragraph
4.2 shall be in lieu of any severance payment which may be due Employee pursuant
to any other provision of this Agreement. It is the intention of the Parties
that no payment be made or benefit provided to Employee pursuant to this
Agreement or any other plan or agreement that would constitute an "excess
parachute payment" within the meaning of Section 280G of the Internal Revenue
Code and any regulations thereunder, thereby resulting in a loss of an income
tax deduction by the Holding Company or the imposition of an excise tax on
Employee under Section 4999 of the Internal Revenue Code. If the independent
accountants serving as auditors for the Bank's parent company on the date of a
Change of Control (or any other accounting firm designated by the Holding
Company) determine that some or all of the payments or benefits scheduled under
this Agreement, as well as any other payments or benefits on a Change of
Control, would be nondeductible by the Bank's parent company under Section 280G
of the Internal Revenue Code, then the payments scheduled under this Agreement
will be reduced to one dollar less than the maximum amount which may be paid
without causing any such payment or benefit to be nondeductible. The
determination made as to the reduction of benefits or payments required
hereunder by the independent accountants shall be binding on the Parties.
Employee shall have the right to designate within a reasonable period, which
payments or benefits will be reduced; provided, however, that if no direction is
received from Employee, the Bank's parent company shall implement the reductions
in its discretion.
4.3 Termination for Cause. If Employee is terminated for cause prior
to the end of a fiscal year, Employer shall not be obligated to pay any annual
performance bonus for the year of, and any year, after such termination,
notwithstanding whether the Employee has met the requirements to earn components
of an annual performance bonus.
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4.4 Fees. If Employee serves on the Bank Board or the board of
directors of any affiliate of the Bank, or a committee thereof, Employee shall
not be entitled to directors fees or meeting fees unless otherwise determined by
the Bank Board.
5. OTHER BENEFITS
During the term of Employee's employment hereunder, Employer shall
provide the following to Employee:
5.1 A monthly automobile allowance of $550.
5.2 Employee shall be entitled to participate in the employee health
and disability insurance benefits, paid sick leave, paid vacation and other paid
or unpaid leave as may be provided by the Bank under its applicable personnel
policies. Approved attendance at meetings or conventions of banking associations
or organizations shall not be charged against Employee's annual vacation
entitlement.
5.3 In the event that Employee is terminated by Employer for any
reason other than cause, Employee may elect to continue the health and
disability insurance benefits for twelve months, or such greater period as
applicable law may require, provided Employee timely pays the applicable premium
cost therefor.
6. EXPENSES
Upon Employee's presentment to Employer of expense reports acceptable
to Employer and which are in sufficiently detailed form to comply with standards
for deduction of business expenses established from time to time by the Internal
Revenue Service, Employer will reimburse Employee for such expenses approved by
Employer and incurred by Employee in connection with performance of his duties
hereunder.
7. POST TERMINATION COVENANTS
7.1 At such time as Employee's employment by Employer terminates,
whether during the initial term of employment or thereafter, Employee agrees
that for six (6) months following such termination he will not engage (either
individually or as an employee, director, consultant or representative of any
other person or entity) in any business activity in which the Bank or any of its
affiliates engages or has formulated plans to engage, within a twenty-five (25)
mile radius of any location of the Bank, or any location of its affiliated
banks.
7.2 Furthermore, for one (1) year following such termination,
Employee agrees that he will not, without the prior written consent of Employer:
(i) furnish anyone with the name of, or any list or lists which identify, any
customers or stockholders of the Employer or utilize such list or information
himself; (ii) furnish, use, or divulge to anyone any confidential information of
Employer acquired by him from Employer and relating to Employer's business
activities; (iii) contact directly or indirectly any customer of Employer for
the purpose of soliciting such person's business for another bank or similar
financial institution; (iv) hire for any
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other employer (including himself) any employee of Employer or directly or
indirectly cause such employee to leave his or her employment to work for
another; (v) pursue an actual or potential business opportunity of interest to
and which could be pursued by Employer which came to the attention of Employee
in connection with his employment with Employer and which Employee had not
previously offered in writing to Employer with sufficient advance notice to
allow Employer to examine and pursue or reject such opportunity. Excepted from
the requirements of subparagraphs (i) and (ii) in this paragraph is any
information which is or becomes publicly available information through no fault
or act of Employee.
7.3 It is understood and agreed by the parties hereto that the
provisions of this section are independent of each other, and to the extent any
provision or portion thereof shall be determined by a court of competent
jurisdiction to be unenforceable, such determination shall not affect the
validity or enforceability of any other provision of this paragraph or the
remainder of this Agreement.
8. WAIVER OF PROVISIONS
Failure by any of the parties hereto to insist, in one or more
instances, on performance by the other in strict accordance with the terms and
conditions of this Agreement shall not be deemed a waiver or relinquishment of
any right granted hereunder or of the obligation of future performance of any
such term or condition or of any other term or condition of this Agreement,
unless such waiver is contained in writing signed by or on behalf of all the
parties.
9. GOVERNING LAW
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Virginia. If for any reason any
provision of this Agreement shall be held by a court of competent jurisdiction
to be void or unenforceable, the same shall not affect the remaining provisions
hereof.
10. MODIFICATION AND AMENDMENT
This Agreement contains the sole and entire agreement among the
parties hereto and supersedes all prior discussions and agreements among the
parties, and any such prior agreements shall, from and after the date hereof, be
null and void. This Agreement shall not be modified or amended except by an
instrument in writing signed by or on behalf of all parties hereto.
11. COUNTERPARTS AND HEADINGS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. The headings set out herein are for
convenience of reference and shall not be deemed a part of this Agreement.
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12. INJUNCTIVE RELIEF
In the event of a breach or threatened breach by Employee of any of
the provisions hereof, and notwithstanding any other provision in this
Agreement, Employer, in addition to any other available rights or remedies,
shall be entitled to such temporary restraining orders and permanent
injunctions, as are allowable and authorized by the laws of the Commonwealth of
Virginia based on the facts of the case, to restrain such breach by Employee
and/or any persons directly or indirectly acting for or with him. Employee's
obligations under paragraph 7 hereof shall remain binding and enforceable
according to its terms notwithstanding expiration or termination of the other
terms of this Agreement or the expiration or termination of Employee's
employment relationship with the Bank.
13. SUCCESSORS
This Agreement shall inure to the benefit of and be binding upon the
Employer, its successors and assigns and upon the Employee, and his heirs and
personal representatives. Neither this Agreement nor performance hereunder and
may be assigned by Employee or Employer.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first written above.
EMPLOYEE:
/s/ M. Xxxxxx XxXxxx (SEAL)
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By: M. Xxxxxx XxXxxx
EMPLOYER:
BANK OF GOOCHLAND, N.A.
By: /s/ Xxxxxxxx X. Xxxxxxx (SEAL)
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Xxxxxxxx X. Xxxxxxx, Chairman of the Board
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