CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of June, 1998 by and
between BANK OF TAZEWELL COUNTY, a Virginia corporation (the "Company"), and
CAMERON L. FORRESTER (the "Executive").
RECITALS
I. As of the Agreement Effective Date, the Executive serves as President of the
Company and is key member of management of the Company and its affiliates and
his services and knowledge are valuable to the Company and its affiliates.
II. The Board (as defined below) has determined that it is in the best interests
of the Company and its shareholders to assure that the Company and its
affiliates will have the continued dedication of the Executive, notwithstanding
the possibility, threat or occurrence of a Change in Control (as defined below)
of the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or threatened Change in Control and to encourage the
Executive's full attention and dedication to the Company and its affiliates
currently and in the event of any threatened or pending Change in Control.
Therefore, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW THEREFORE, it is hereby agreed as follows:
1. CERTAIN DEFINITIONS
(a) "Agreement Effective Date" means June 1, 1998.
(b) The "Agreement Term" means the period commencing on the Agreement
Effective Date and ending on the earlier of (i) the Agreement Regular
Termination Date or (ii) the date this Agreement terminates pursuant to
Section 7. The "Agreement Regular Termination Date" means the third
anniversary of the Agreement Effective Date, provided, however, that
commencing on the third anniversary of the Agreement Effective Date, and
on each biannual anniversary of such third anniversary date (such date
and each biannual anniversary thereof shall be hereinafter referred to
as the "Renewal Date"), unless this Agreement previously terminated, the
Agreement Regular Termination Date shall be automatically extended for
two years from the latest Renewal Date, unless at least one year prior
to the latest Renewal Date the Company shall give notice to the
Executive in accordance with Section 10(c) of this Agreement that the
Agreement Regular Termination Date shall not be so extended.
(c) "Board" means the Board of Directors of the Company if the reference is
not to the Board of the Parent, or the Board of Directors of the Parent
Company if the reference is to the Board of the Parent Company.
(d) "Cause" means:
(i) the willful and continued failure of the Executive to substantially
perform his duties with the Company or one of its affiliates (other than
any such failure resulting from incapacity due to physical or mental
illness), after a written demand for substantial performance is
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delivered to the Executive by the Board which specifically identifies
the manner in which the Board believes that the Executive has not
substantially performed his duties, or
(ii) the willful engaging by the Executive in illegal conduct or
gross misconduct which is materially and demonstrably injurious to the
Company.
For purposes of this provision, no act or failure to act, on the part of the
Executive, shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by the Board or based upon the advice of counsel for the Company shall
be conclusively presumed to be done, or omitted to be done, by the Executive in
good faith and in the best interests of the Company. The cessation of employment
of the Executive shall not be deemed to be for Cause unless and until there
shall have been delivered to the Executive a copy of a resolution duly adopted
by the affirmative vote of not less than three quarters of the entire membership
of the Board at a meeting of the Board called and held for such purpose (after
reasonable notice is provided to the Executive in accordance with Section 10(c)
of this Agreement and the Executive is given an opportunity, together with
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, the Executive is guilty of the conduct described in paragraph (i)
or (ii) above, and specifying the particulars thereof in detail.
(e) The "Change in Control Date" means the first date during the Agreement Term
on which a Change in Control (as defined in Section 2) occurs. Anything in this
Agreement to the contrary notwithstanding, if a Change in Control occurs and if
the Executive's employment with the Company is terminated prior to the date on
which the Change in Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment either (i) was the request of a
third party who has taken steps reasonably calculated to effect a Change in
Control or (ii) otherwise arose in connection with or anticipation of a Change
in Control, then for all purposes of this Agreement the "Change in Control Date"
shall mean the date immediately prior to the date of such termination of
employment.
(f) "Company" means the Bank of Tazewell County, a Virginia corporation.
(g) "Coverage Period" means the period of time beginning with the Change in
Control Date and ending on the earliest to occur of (i) the Executive's death
and (ii) the sixty-first day after the second anniversary of the Change in
Control Date.
(h) "Disability" means the absence of the Executive from his duties with the
Company on a full-time basis for one year as a result of incapacity due to
mental or physical illness or injury which is determined to be total and
permanent by a physician selected by the Company or its insurers and acceptable
to the Executive or the Executive's legal representative. If the Company
determines in good faith that the Disability of the Executive has occurred, it
may give to the Executive written notice in accordance with Section 10(c) of
this Agreement of its intention to terminate the Executive's employment. In such
event, the Executive's employment with the Company shall terminate effective on
the 30th day after receipt of such notice by the Executive (the "Disability
Effective Date"), provided that, within the 30 days after such receipt, the
Executive shall not have returned to full-time performance of his duties.
(i) "Good Reason" means any good faith determination made by the Executive
(which determination shall be conclusive) that any of the following has
occurred:
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(i) the occurrence, on or after the Agreement Effective Date and
during the Coverage Period, of any of the following:
(A) the assignment to the Executive of any duties
inconsistent in any material adverse respect with the Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities immediately
prior to the Change in Control, or any other action by the
Company which results in a diminution in such position,
authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive in accordance
with Section 10(c)of this Agreement.
(B) a reduction by the Company in the Executive's rate of
annual base salary, benefits (including, without limitation,
incentive or bonus pay arrangements, stock plan benefits, and
retirement and welfare plan coverage) and perquisites as in
effect immediately prior to the Change in Control or as the same
may be increased from time to time thereafter, other than an
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive in accordance
with Section 10(c) of this Agreement;
(C) the Company's requiring the Executive to be based at
any office or location more than 35 miles from the facility where
the Executive is located at the time of the Chance in Control or
the Company's requiring the Executive to travel on Company
business to a substantially greater extent then required
immediately prior to the Change in Control Date (but determined
without regard to travel necessitated by reason of any
anticipated Change in Control);
(D)any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by
this Agreement; or
(E) any failure by the Company to comply with and satisfy
Section 9(c) of this Agreement by obtaining satisfactory
agreement from any successor to assume and perform this
Agreement.
(ii) any event or condition described in paragraph (i) of this
Section 1(i) which occurs on or after the Agreement Effective Date, but
prior to a Change in Control, but was at the request of a third party
who effectuates the Change in Control, notwithstanding that it occurred
prior to the Change in Control, but such event or condition shall not be
considered to actually have occurred until the Change in Control Date.
(j) "Covered Termination" means a termination of Executive's employment
during the Coverage Period (i) by the Company for any reason other than Cause or
the Executive's Disability or death, or (ii) by the Executive for Good Reason.
(k) "Noncovered Termination" means a cessation of Executive's
employment, which is not a Covered Termination.
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(l) "Parent Company" means National Bankshares, Inc., a Virginia
corporation, which as of the Agreement Effective Date is the sole shareholder of
the Company.
2. CHANGE IN CONTROL. "Change in Control" means the occurrence, during
the Agreement Term, of either an "Acquisition of Controlling Ownership" (as
defined in Section 2(a) below), a "Change in the Incumbent Board" (as defined in
Section 2(b) below), a "Business Combination" (as defined in Section 2(c)
below), or a "Liquidation or Dissolution" (as defined in Section 2(d) below).
(a) "Acquisition of Controlling Ownership" means the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 20% or more of either (x) the then outstanding shares
of common stock of the Company or the Parent Company (the "Outstanding Common
Stock") or (y) the combined voting power of the then outstanding voting
securities of the Company or the Parent Company entitled to vote generally in
the election of directors (the "Outstanding Voting Securities"). Notwithstanding
the foregoing, for purposes of this Section 2(a) the following acquisitions
shall not constitute a Change in Control:
(i) any acquisition directly from the Company or the Parent
Company,
(ii) any acquisition by the Company or the Parent Company,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or the Parent Company or
any corporation controlled by the Company or the Parent Company, or
(iv) any acquisition by any corporation pursuant to a transaction
which complies with paragraphs (i), (ii) and (iii) of) of this Section
2(c).
(b) "Change in the Incumbent Board," means that individuals who, as of
the Agreement Effective Date, constitute the Board of the Parent Company (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board. For this purpose, any individual who becomes a director subsequent to the
Agreement Effective Date whose election, or nomination for election by the
Parent Company's shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be thereupon considered
a member of the Incumbent Board (with his predecessor thereafter ceasing to be a
member), but excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board of the Parent Company.
(c) "Business Combination" means the consummation of a reorganization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company or the Parent Company (a "Business Combination")
unless all of the following occur:
(i) all or substantially all of the individuals and entities who
were the beneficial owners respectively, of the Outstanding Common Stock
and Outstanding Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly, more than 60% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled
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to vote generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction
owns the Company or the Parent Company or all or substantially all of
the Company's assets or the Parent Company's assets either directly or
through one or more subsidiaries, in substantially the same proportions
as their ownership, immediately prior to such Business Combination of
the Outstanding Common Stock and Outstanding Voting Securities, as the
case may be,
(ii) no Person (excluding any corporation resulting from such
Business Combination or any employee benefit plan (or related trust) of
the Company or the Parent Company or such corporation resulting from
such Business Combination) beneficially owns, directly or indirectly,
20% or more of, respectively, the then outstanding shares of common
stock of the corporation resulting from such Business Combination, or
the combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed prior
to the Business Combination, and
(iii) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination
were members of the Incumbent Board or were elected by such majority at
the time of the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination.
(d) "Liquidation or Dissolution" means the approval by the shareholders
of the Parent Company of a complete liquidation or dissolution of the Parent
Company.
3. OBLIGATIONS OF THE EXECUTIVE TO REMAIN EMPLOYED. The Executive agrees
that in the event any person or group attempts a Change in Control, he shall not
voluntarily leave the employ of the Company without Good Reason (i) until such
attempted Change in Control terminates or (ii) if a Change in Control shall
occur, until the change in Control Date. For purposes of the foregoing clause
(i), Good Reason shall be determined as if a Change in Control had occurred when
such attempted Change in Control became known to the Board.
4. OBLIGATIONS UPON THE EXECUTIVE'S TERMINATION.
(a) Notice of Termination. Any termination of the Executive's employment
by the Company or by the Executive, other than by reason of death, shall be
communicated by Notice of Termination to the other party hereto given. For
purposes hereof:
(i) "Notice of Termination" means a written notice given in
accordance with Section 10(c) of this Agreement which (A) states whether
such termination is for Cause, Good Reason or Disability, (B) indicates
the specific termination provision in this Agreement relied upon, if
any, (C) to the extent applicable, 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, and (D) if
the Date of Termination is other than date of receipt of such notice,
specifies the termination date. The failure by the Executive or the
Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason, Cause or
Disability shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
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(ii) "Date of Termination" means (A) if the Executive's
employment is terminated by reason of Disability, the Disability
Effective Date, (B) if the Executive's employment is terminated by the
Company for any reason other than Disability, the date of the
Executive's receipt of the Notice of Termination or any later date
specified therein, as the case may be, and (C) if the Executive's
employment is terminated by the Executive for any reason, the date of
the Company's receipt of the Notice of Termination or any later date
specified therein, as the case may be:
(b) Obligations of the Company in a Covered Termination. If the
Executive's employment shall cease by reason of a Covered Termination, then:
(i) the Company shall pay or cause to be paid to the Executive in
a lump sum in cash within 30 days after the Date of Termination an
amount equal to the product of (A) [two] and (B) the sum of the
Executive's (1) highest aggregate annual base salary from the Company
and its affiliated companies in effect at any time during the 24 month
period ending on the Change in Control Date and (2) highest aggregate
annual bonuses (including any deferrals thereof) from the Company and
its affiliated companies payable for the Company's two fiscal years
immediately preceding the fiscal year which includes the Change in
Control Date (such other amount may be hereinafter sometimes referred to
as the "Change in Control Benefit"); and
(ii) to the extent not theretofore paid or provided, the Company
shall timely pay or cause to be paid or provide or cause to be provided
to the Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any
compensation arrangement, plan, program, policy or practice or contract
or agreement of the Company and its affiliated companies (such other
amounts and benefits shall be hereinafter referred to as the "Other
Benefits").
(c) Obligations of the Company in a Noncovered Termination. If the
Executive's employment shall cease by reason of a Noncovered Termination, this
Agreement shall terminate without further obligations to the Executive other
than the obligation timely to pay or cause to be paid or provide or cause to be
provided to the Executive his Other Benefits.
5. FULL SETTLEMENT.
(a) No Offset or Mitigation. 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 the
Executive. In no event shall the Executive be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and such amounts shall
not be reduced whether or not the Executive obtains other employment.
(b) Executive's Expenses in Dispute Resolution. The Company agrees to
pay as incurred, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Company, the Executive or others of
the validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by the Executive about the amount of any payment pursuant to this
Agreement), plus in each case interest on any delayed payment at the applicable
Federal rate provided for in Section 7872(f)(2)(A) of the Internal Revenue Code
of 1986, as amended (the "Code").
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(c) Payment prior to Dispute Resolution. If there shall be any dispute
between the Company and the Executive in the event of any termination of
Executive's employment, then, unless and until there is a final, nonappealable
judgment by a court of competent jurisdiction declaring that such termination
was a Noncovered Termination, that the determination by the Executive of the
existence of Good Reason was not made in good faith, or that the Company is not
otherwise obligated to pay any amount or provide any benefit to the Executive
and his dependents or other beneficiaries, as the case may be, under Section
4(b), the Company shall pay all amounts, and provide all benefits, to the
Executive and his dependents or other beneficiaries, as the case may be, that
the Company would be required to pay or provide pursuant to Section 4(b) as
though such termination were not a Noncovered Termination. Notwithstanding the
foregoing, the Company shall not be required to pay any disputed amounts
pursuant to this Section 5(c) except upon receipt of an adequate bond, letter of
credit or undertaking by or on behalf of the Executive to repay all such amounts
to which the Executive is ultimately adjudged by such court not to be entitled.
6. PAYMENT LIMITATIONS.
(a) Excise Tax Payment Limitation. Notwithstanding anything contained in
this Agreement or any other agreement or plan to the contrary, the payments and
benefits provided, to, or for the benefit of, the Executive under this Agreement
or under any other plan or agreement which became payable or are taken into
account as a result of the Change in Control (the "Payments") shall be reduced
(but not below zero) to the extent necessary so that no payment to be made, or
benefit to be provided, to the Executive or for his benefit under this Agreement
or any other plan or agreement shall be subject to the imposition of an excise
tax under Section 4999 of the Code (such reduced amount is hereinafter referred
to as the "Limited Payment Amount"). Unless the Executive and the Company shall
otherwise agree, the Company shall reduce or eliminate the Payments to the
Executive by first reducing or eliminating those payments or benefits which are
not payable in cash and then by reducing or eliminating cash payments, in each
case in reverse order beginning with payments or benefits which are to be paid
the farthest in time from the Determination (as hereinafter defined). Any notice
given by the Executive pursuant to the preceding sentence shall take precedence
over the provisions of any other plan, arrangement or agreement governing
Executive's rights and entitlements to any benefits or compensation.
(b) Excise Tax Payment Limitation Determinations. All determinations
required to be made under this Section 6 shall be made by the Company's public
accounting firm (the "Accounting Firm"). The Accounting Firm shall provide its
calculations, together with detailed supporting documentation, both to the
Company and the Executive within fifteen days after the receipt of notice from
the Company that there has been a Payment (or at such earlier times as is
requested by the Company) and, with respect to any Limited Payment Amount, a
reasonable opinion to the Executive that he is not required to report any excise
tax on his federal income tax return with respect to the Limited Payment Amount
(collectively, the "Determination"). In the event that the Accounting Firm is
serving as an accountant or auditor for the individual, entity or group
effecting the Change in Control, the Executive shall appoint another nationally
recognized public accounting firm to make the determination required hereunder
(which accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees, costs and expenses (including, but not limited to, the
costs of retaining experts) of the Accounting Firm shall be borne by the
Company. The Determination by the Accounting Firm shall be binding upon the
Company and the Executive (except as provided in Section 6(c) below).
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(c) Excise Tax Excess Payments Considered a Loan. If it is established
pursuant to a final determination of a court or an Internal Revenue Service (the
"IRS) proceeding which has been finally and conclusively resolved, that Payments
have been made to, or provided for the benefit of, the Executive by the Company,
which are in excess of the limitations provided in Section 6(a) (hereinafter
referred to as an "Excess Payment"), such Excess Payment shall be deemed for all
purposes to be a loan to the Executive made on the date the Executive received
the Excess Payment and the Executive shall repay the Excess Payment to the
Company on demand, together with interest on the Excess Payment at the
applicable federal rate (as defined in Section 1274(d) of the Code) from the
date of Executive's receipt of such Excess Payment until the date of such
repayment. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the Determination, it is possible that Payments which
will not have been made by the Company should have been made (an
"Underpayment"), consistent with the calculations required to be made under this
Section 6. In the event that it is determined (i) by the Accounting Firm, the
Company (which shall include the position taken by the Company, or together with
its consolidated group, on its federal income tax return) or the IRS or (ii)
pursuant to a determination by a court, that an Underpayment has occurred, the
Company shall pay an amount equal to such Underpayment to the Executive within
ten days of such determination together with interest on such amount at the
applicable federal rate from the date such amount would have been paid to the
Executive until the date of payment.
(d) Banking Payment Limitation. Notwithstanding anything contained in
this Agreement or any other agreement or plan to the contrary, the payments and
benefits provided to, or for the benefit of, the Executive under this Agreement
or under any other plan or agreement shall be reduced (but not below zero) to
the extent necessary so that no payment to be made, or benefit to be provided,
to the Executive or for his benefit under this Agreement or any other plan or
agreement shall be in violation of the golden parachute and indemnification
payment limitations and prohibitions of 12 CFR Section 359.
7. TERMINATION OF AGREEMENT. This Agreement shall be effective as of the
Agreement Effective Date and shall normally continue until the later of the
Agreement Regular Termination Date or, if a Change in Control has occurred,
until the end of the Coverage Period. Notwithstanding the foregoing, this
Agreement shall terminate in any event upon the Executive's cessation of
employment in a Noncovered Termination.
8. CONFIDENTIAL INFORMATION.
(a) No Disclosure by Executive. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret or confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by the Company or any of its affiliated
companies and which shall not be or become public knowledge (other than by acts
by the Executive or representatives of the Executive in violation of this
Agreement). After termination of the Executive's employment with the Company,
the Executive shall not, without the prior written consent of the company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or date to anyone other than the Company and those
designated by it.
(b) Remedies for Breach. It is recognized that damages in the event of
breach of Section 8(a) above the Executive would be difficult, if not
impossible, to ascertain, and it is therefore specifically agreed that the
Company, in addition to and without limiting any other remedy or right it may
have, shall have the right to an injunction or other equitable relief in any
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court of competent jurisdiction, enjoining any such breach. The existence of
this right shall not preclude the Company from pursing any other rights and
remedies at law or in equity, which it may have.
(c) Breach Not Basis to Withhold Payment. In no event shall an asserted
violation of the provisions of this Section 8 constitute a basis for deferring
or withholding any amounts otherwise payable to the Executive under this
Agreement.
9. BENEFIT AND SUCCESSORS.
(a) Executive's Benefit. This Agreement shall inure to the benefit of
and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributes, devisees and
legatees. If the Executive should die and any amount remains payable hereunder
after his death, any such amount, unless otherwise agreed by the Company or
provided herein, shall be paid in accordance with the terms of this Agreement to
the Executive's devisee, legatee or other designee of such payment or, if there
is no such designee, the Executive's estate.
(b) Company's Benefit. This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) Assumption by Successor to Company. The Company will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to assume expressly and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. As used in this Agreement, "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, or otherwise.
10. MISCELLANEOUS.
(a) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Virginia, without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect.
(b) Amendment. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the parties hereto or their respective
successors and legal representatives.
(c) Notices. All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to the Executive:
Cameron L. Forrester
220 Church Street
Tazewell, Virginia 24651
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If to the Company:
Bank of Tazewell County
Care of the Chairman of the Board
309 East Main Street
P.O. Box 687 Tazewell, Virginia 24651-0687
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(d) Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(e) Tax Withholding. The Company may withhold from any amounts payable
under this Agreement such Federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
(f) Waiver. The Executive's or the Company's failure to insist upon
strict compliance with any provision of this Agreement or the failure to assert
any right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to this Agreement, shall not be deemed to be a waiver of such provision
or right or any other provision or right of this Agreement.
(g) Executive's Employment. The Executive and the Company acknowledge
that, except as may otherwise be provided under any other written agreement
between the Executive and the Company, the employment of the Executive by the
Company is "at will" and, subject to paragraph (ii) of Section 1(i) hereof
deeming a termination to have occurred on or after the occurrence of a Change in
Control Date, the Executive's employment and/or this Agreement may be terminated
by either the Executive or the Company at any time prior to the Change in
Control Date, in which case the Executive shall have no further rights under
this Agreement.
(h) Nonexclusivity of Rights. Except as expressly provided in Section 6,
nothing in this Agreement shall prevent or limit the Executive's continuing or
future participation in any plan, program, policy or practice provided by the
Company or any of its affiliated companies and for which the Executive may
qualify, nor shall anything herein limit or otherwise affect such rights as the
Executive may have under any contract or agreement with the Company or any of
its affiliated companies. Amounts which are vested benefits or which the
Executive is otherwise entitled to receive under any plan, policy, practice or
program of or any contract or agreement with the Company or any of its
affiliated companies at or subsequent to the Executive's termination shall be
payable in accordance with such plan, policy, practice or program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Executive's termination shall be payable in accordance with
such plan, policy, practice or program or contract or agreement except as
explicitly modified by this Agreement.
(i) Statutory References. Any reference in this Agreement to a specific
statutory provision shall include that provision and any comparable provision or
provisions of future legislation amending, modifying, supplementing or
superseding the referenced provision.
(j) Nonassignability. This Agreement is personal to the Executive, and
without the prior written consent of the Company, no right, benefit or interest
hereunder shall be subject in any manner to anticipation, alienation, sale,
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transfer, assignment, pledge, encumbrance or charge, except by will or the laws
of descent and distribution, and any attempt thereat shall be void; and no
right, benefit or interest hereunder shall, prior to receipt of payment, be in
any manner liable for or subject to the recipient's debts, contracts,
liabilities, engagements or torts.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be considered an original and all of which
together shall constitute one agreement.
(l) Employment with Affiliates. Employment with the Company for purposes
of this Agreement shall include employment with any corporation or other entity
in which the Company has a direct or indirect ownership interest of 50% or more
of the total combined voting power of the then outstanding securities of such
corporation or other entity entitled to vote generally in the election of
directors or which has a direct or indirect ownership interest of 50% or more of
the total combined voting power of the then outstanding securities of the
Company entitled to vote generally in the election of directors.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from its Board of Directors, the Company has
caused these presents to be executed in its name on its behalf, all as of the
day and year first above written.
/s/ CAMERON L. FORRESTER
-----------------------------
CAMERON L. FORRESTER, Executive
BANK OF TAZEWELL COUNTY
By /s/ WM. T. PEERY
---------------------------------
William T. Peery
Chairman of the Board of Directors
77