EXHIBIT 10
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is entered into as of the 16th day of December, 1997 by
and between C&F FINANCIAL CORPORATION, a Virginia corporation (the "Company"),
and LARRY G. DILLON (the "Executive").
RECITALS
I. The Executive currently serves as Chief Executive Officer of the
Company, and is a 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 December 16, 1997.
(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 first
anniversary of the Agreement Effective Date, and on each subsequent anniversary
(such date and each subsequent anniversary shall be hereinafter referred to as
the "Renewal Date"), unless this Agreement is previously terminated, the
Agreement Regular Termination Date shall be automatically extended for three
years from the latest Renewal Date, unless at least one month 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.
(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 delivered to the Executive by the Board, pursuant to a
vote of a majority of the "Outside Directors" (as defined below), which
specifically identifies the manner in which the Outside Directors of
the Board believe 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 two-thirds of the members of the Board
who are not and have never been employed by the Company or its subsidiaries (the
"Outside Directors") 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 has engaged in 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
at 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 C&F Financial Corporation, 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 six months as a result of incapacity
to serve as the Chief Executive Officer of the Company, including substantially
all duties normally considered a part thereof, 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:
(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
benefit arrangements, 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 Change in
Control or the Company's requiring the Executive to travel on
Company business to a substantially greater extent than
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;
(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; or
(F) so long as no Cause for Executive's termination
by the Company exists (or would exist assuming the Board made
a determination of Cause), a voluntary cessation by the
Executive of his employment for any reason during any Window
Period.
(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.
(l) "Window Period" means any of (i) the 60-day period commencing on
the Change in Control Date, (ii) the 60-day period commencing on the first
anniversary of the Change in Control Date, and (iii) the 60-day period
commencing on the second anniversary of the Change in Control Date.
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 (the "Outstanding Common Stock") or (y) the
combined voting power of the then outstanding voting securities of the 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,
(ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the 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
November 30, 1997, constitute the Board (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 November 30, 1997 whose
election, or nomination for election by the 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.
(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 (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 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 all or substantially all of the
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 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 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 Company of a complete liquidation or dissolution of the 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 the 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.
(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 the
following shall be paid or provided (the payments and benefits described in (i),
(ii) and (iii) below may hereinafter sometimes be referred to as the "Change in
Control Benefit" or "Change in Control Benefits"):
(i) the Company shall pay or cause to be paid in cash to the
Executive in twelve (12) consecutive quarterly installments, with
interest at the applicable federal rate (as defined in Section 1274(d)
of the Internal Revenue Code of 1986, as amended (the "Code"))
determined at the Change in Control Date on the unpaid balance paid at
the same time on each installment payment other than the first payment,
with the first of such installments being paid not later than 30 days
after the Date of Termination, (or if the Executive requests and the
Company agrees in a lump sum within 30 days after the Date of
Termination) and with the aggregate payments (excluding interest)
totaling an amount equal to the product of (A) two and one-half 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
three fiscal years immediately preceding the fiscal year which includes
the Change in Control Date;
(ii) for three years after the Executive's Date of
Termination, or such longer period as may be provided by the terms of
the appropriate plan, program, practice or policy, the Company shall
continue or cause to be continued benefits to the Executive and/or the
Executive's family at least equal to those under the Welfare Benefit
Plans. If the Executive becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under another
employer-provided plan, the medical and other welfare benefits
described herein shall be secondary to those provided under such other
plan during such applicable period of eligibility. For purposes of
determining eligibility (but not the time of commencement of benefits)
of the Executive for any retiree benefits pursuant to such plans,
practices, programs and policies, the Executive shall be considered to
have remained employed until three years after the Date of Termination
and to have retired on the last day of such period. For purposes
hereof, the term "Welfare Benefit Plan" means the welfare benefit
plans, practices, policies and programs provided by the Company and its
affiliates (including, without limitation, any medical, prescription,
dental, vision, disability, life, accidental death and travel accident
insurance plans and split dollar insurance programs) to the extent
applicable generally to other peer executives of the Company and its
affiliates, but in no event shall such plans, practices, policies and
programs provide the Executive with benefits which are less favorable,
in the aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time during
the one year period immediately preceding the Change in Control Date
or, if more favorable to the Executive, those provided generally at any
time after the Change in Control Date to other peer executives of the
Company and its affiliated companies;
(iii) if the Executive so requests in writing within one year
after the Date of Termination, the Company shall purchase the residence
which the Executive was using as his primary residence at the Change in
Control Date, or such later date to which the Company consents in
writing in its sole discretion, for an amount equal to its appraised
fair market value at the time of purchase, where the appraisal is
performed by an appraiser who is mutually agreeable to the Executive
and the Company or otherwise is selected by the Executive from a list
of not less than five appraisers selected by the Company and not doing
any substantial business with the Company; and
(iv) 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, to the full extent permitted by law, all legal fees and expenses which the
Executive may reasonably incur as a result of a contest (in which the Executive
substantially prevails) 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 lower of (i) the Crestar Bank
Prime Rate or (ii) the applicable Federal mid-term rate provided for in Section
1274(d), compounded semi-annually, of the Code.
(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).
(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 data 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 by 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
court of competent jurisdiction, enjoining any such breach. The existence of
this right shall not preclude the Company from pursuing 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, distributees, 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:
Larry G. Dillon
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If to the Company:
C&F Financial Corporation
James Hudson, III, Esquire
Counsel
Hudson and Bondurant, P.C.
826 Main Street, P. O. Box 231
West Point, VA 23181
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 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,
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/ Larry G. Dillon
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LARRY G. DILLON, Executive
C&F FINANCIAL CORPORATION
By /s/ J.P. Causey Jr.
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Name:
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Its Chairman Compensation Committee
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