Exhibit (10 (a)
EMPLOYMENT AGREEMENT
---------------------
This Employment Agreement (this "Agreement") is made as of the 18th day of
April, 1996, between Southern Financial Bank, with its principal offices in
Warrenton, Virginia (hereinafter called the "Bank") and Georgia S. Derrico
(hereinafter called "Executive").
WITNESSETH THAT:
WHEREAS, the parties desire to enter into this Agreement setting forth
the terms and conditions of the employment relationship between the Bank and the
Executive;
WHEREAS, the Board of Directors of the Bank (the "Board") believes it
is in the best interest of the Bank to enter into this Agreement with the
Executive in order to attempt to assure management continuity of the Bank; and
WHEREAS, the Board of Directors of the Bank has approved and authorized
the execution of this Agreement with the Executive.
NOW, THEREFORE, to assure the Bank that it will have the continued
dedication of Executive and the availability of her advice and counsel and to
induce Executive to remain in the employ of the Bank, and for other good and
valuable consideration, the Bank and Executive hereby agree as follows:
1. Definitions.
(i) "Cause," when used in connection with the termination of
Executive's employment by the Bank, shall mean (a) the willful and continued
failure by Executive substantially to perform her duties and obligations to the
Bank (other than any such failure resulting from physical or mental condition,
whether or not such condition constitutes a Disability) which failure continues
after the Bank has given written notice thereof to Executive which notice
specifies the aspects in which the Executive has failed to perform her duties or
obligations to the Bank or (b) the willful engaging by Executive in misconduct
which is materially injurious to the Bank, monetarily or otherwise. For purposes
of this definition, no act, or failure to act, on Executive's part shall be
considered "willful" unless done, or omitted to be done, by Executive in bad
faith and without reasonable belief that his or her action or omission was in
the best interests of the Bank.
(ii) "Change in Control" shall mean the occurrence of any of the
following:
(a) any "person" (as such term is used in Sections 13 (d) and 14 (d) of the
Exchange Act, an "Acquiring Person") becomes the "beneficial owner" (as such
term is defined in Rule 13d - 3 promulgated under the Exchange Act, a
"Beneficial Owner"), directly or indirectly, of securities of the Bank
representing 25% or more of the combined voting power of the Bank's then
outstanding securities;
(b) an Acquiring Person becomes the Beneficial Owner, directly or
indirectly, of securities of the Bank representing 10% or more of the combined
voting power of the Bank's then outstanding securities and either the Board or
the U.S. Office of Thrift Supervision makes a determination that such
acquisition constitutes or will constitute the acquisition of control of the
Bank for purposes of this Agreement:
(c) the Bank's stockholders approve an agreement to merge or consolidate
the Bank with another corporation (other than a corporation 50% or more of which
is controlled by, or is under common control with, the Bank) and, during the
period commencing six months before such approval and ending two years after
such approval, individuals who at the beginning of such period constitute the
Board cease for any reason to constitute at least a majority thereof; or
(d) the Bank sells 80% or more of its assets to an Acquiring Person.
However, a Change in Control shall not occur by reason of any transaction in
which Executive, or a group of individuals or entities including Executive,
participates as an Acquiring Person in the events described in clauses (a), (b),
or (d) of this Section 1(ii) or owns, directly or indirectly, a majority of a
corporation described in clause (c) of this Section 1 (ii).
(iii) "Committee" shall mean the Compensation Committee of the Board.
(iv) "Compensation" shall mean the sum of (a) Executive's annual base
salary at the highest rate earned by her at any time during the twelve months
immediately preceding a Termination Date plus (b) the highest annual bonus
earned by Executive with respect to any of the three calendar years preceding
the Termination Date.
(v) "Contract Period" shall mean the period commencing on the date
hereof and terminating on the third anniversary of the date hereof; provided,
that on each anniversary of the date hereof the Contract Period shall be
automatically extended unless either party has prior to such anniversary date
given written notice to the other that it does not desire the Contract Period to
be so extended.
(iv) "Disability" shall mean a physical or mental condition which in
the judgement of the Executive renders the Executive unable to substantially
perform the requirements of the positions of Chief Executive Officer and
Chairman of the Board of Directors of the Bank.
(vii) "Effective Period" shall mean the period commencing on the date
of a Change in Control and terminating on the first anniversary of such Change
in Control.
(viii) "Good Reason" when used with reference to a termination by
Executive of her employment with the Bank shall mean:
(a) the assignment to Executive of any duties inconsistent with, or the
reduction of powers or functions associated with, her positions, duties,
responsibilities and status with the Bank immediately prior to a Change in
Control, or any removal of Executive from, or any failure to reelect Executive
to, any positions or offices Executive held immediately prior to a Change in
Control;
(b) a reduction by the Bank of Executive's base salary as in effect
immediately prior to a Change in Control;
(c) a change in Executive's principal work location;
(d) (i) the failure by the Bank to continue in effect any employee benefit
plan, program or arrangement in which Executive was participating immediately
prior to a Change in Control (or, for each such plan, a substitute plan, program
or arrangement providing Executive with substantially similar benefits) or (ii)
the taking of any action, or the failure to take any action, by the Bank which
could adversely affect Executive's benefits under, any such plan, program or
arrangement;
(e)the failure by the Bank to pay Executive any portion of Executive's
current compensation, or any portion of Executive's compensation deferred under
any plan, agreement or arrangement of or with the Bank, within seven (7) days of
the date such compensation is due;
(f) the failure by the Bank to obtain an assumption of the obligations of the
Bank under this Agreement by any successor to the Bank; or
(g) any termination of Executive's employment by the Bank during the Contract
Period which is not effected pursuant to the requirements of this Agreement.
(ix) "Termination Date" shall mean the effective date as provided
hereunder of the termination of Executive's employment.
(x) "Without Cause" when used in conjunction with the termination of
Executive's employment by the Bank, shall mean any termination of employment of
Executive by the Bank which is not a termination of employment for Cause.
2. Employment. The Bank agrees to employ the Executive as its Chief
Executive Officer during the Contract Period and the Executive accepts such
position. As Chief Executive Officer, the Executive shall render administrative
and management services to the Bank as are customarily performed by persons
situated in a similar executive capacity. The Executive shall perform her duties
under this Agreement in accordance with such reasonable standards established
from time to time by the Board. [During the Contract Period, the Bank agrees to
use its best efforts to cause the Executive to be nominated for and appointed to
the position of Chairman of the Board of the Bank.]
3. Compensation.
(a) The Bank agrees to pay the Executive during the Contract Period base
salary at a rate of not less than $165,000 per annum (the "Base Salary"). The
Base Salary shall be payable not less frequently than monthly in accordance with
the practices of the Bank as in effect from time to time. The amount of Base
Salary shall be reviewed by the Board not less often than annually and may be
increased (but not decreased) from time to time by such amounts as the Board in
its discretion may decide.
(b) During the Contract Period, the Executive shall be entitled to
participate in an equitable manner with all other officers of the Bank in
discretionary bonuses as authorized and declared by the Board to its executive
employees. No other compensation provided for in this Agreement shall be deemed
a substitute for the Executive's right to participate in such bonuses when and
as declared by the Board.
(c) During the Contract Period, the Executive shall be entitled to
participate in any stock option, stock purchase, pension, thrift, deferred
profit-sharing, group life insurance, medical coverage, education or other
retirement or employee benefit plan that the Bank may adopt for the benefit of
its executive employees.
(d) During the Contract Period, the Executive shall be eligible to
participate in any fringe benefit plan or program which may be or become
applicable to the Bank's executive employees, which shall include use of an
automobile, a reasonable expense account, the payment of reasonable expenses for
attending annual and periodic meetings of trade associations and any other
benefits which are commensurate with the responsibilities and functions to be
performed by the Executive under this Agreement.
(e) In addition to the benefits provided to the Executive pursuant to
Sections 3 (c) and (d) above, the Executive shall also be entitled to any
benefits provided for in the Bank's employee or personnel manual.
4. Vacations; Leaves of Absence. At such reasonable times as the Board shall
in its discretion permit, the Executive shall be entitled, without loss of pay,
to absent herself voluntarily from the performance of her employment under this
Agreement, all such voluntary absences to count as vacation, provided that,
(a) The Executive shall be entitled to an annual vacation in accordance
with policies established in the Bank's employee or personnel manual;
(b) The timing of vacation shall be scheduled in a reasonable manner by the
Executive; and
(c) In addition to the aforesaid paid vacations, the Executive shall be
entitled, without loss of pay, to absent herself voluntarily from the
performance of her employment with the Bank for such additional periods of time
and for such valid and legitimate reasons as the Board in its discretion may
determine. Further, the Board shall be entitled to grant to the Executive a
leave or leaves of absence with or without pay at such time or times and upon
such terms and conditions as the Board, in its discretion, may determine.
5. Termination of Employment During the Contract Period. During the
Contract Period and prior to a Change in Control, the Executive's employment
with the Bank may be terminated at any time by the Board or by the Executive for
any reason or without reason; provided, that the Executive shall provide the
Bank with at least 90 days prior written notice (or such shorter period as the
Board and the Executive may agree) of her termination of her employment with the
Bank. The Executive shall be entitled to the following benefits and payments
upon a termination of her employment with the Bank during the Contract Period
and prior to a Change in Control.
(a) In the event of the termination of the employment of the Executive with
the Bank by the Bank for Cause or by the Executive (whether or not for Good
Reason), the Executive shall be entitled to all compensation and benefits earned
by her and unpaid at the time of such termination, and shall not be entitled to
any further compensation or benefits hereunder.
(b) In the event of the termination of the employment of the Executive with
the Bank Without Cause, the Executive shall be entitled to:
(i) the continuation of the Base Salary for the remainder of the
Contract Period; and
(ii) until the earlier of; (a) the expiration of the Contract Period or
(b) Executive's commencement of full time employment with a new employer,
Executive's continued participation in all life, medical, dental, prescription
drug and long and short-term disability insurance plans, programs or
arrangements in which the Executive was entitled to participate at any time
during the twelve month period prior to the Termination Date, provided that
Executive's continued participation is possible under the general terms and
provisions of such plans, programs, or arrangements. In the event that
Executive's participation in any such plan, program or arrangement is
prohibited, the Bank shall arrange to provide Executive with benefits
substantially similar to those which Executive is entitled to receive under such
plans, programs or arrangements for such period.
[Executive shall not be required to mitigate the amount of the payment and
benefits provided for in this Section 5(b) by seeking other employment or
otherwise. Except as provided for in this Section 5(b) shall not be reduced by
any compensation or other amounts paid to or earned by Executive as the result
of employment with another employer after the Termination Date or otherwise.]
(c) In the event of the termination of the employment of the Executive as a
result of the death or Disability of the Executive during the Contract Period,
she shall be entitled to benefits under the life insurance and disability plans,
programs and arrangements in which she is entitled to participate pursuant to
the terms of this Agreement, and she shall not be entitled to any further
compensation or benefits hereunder.
6. Termination of Employment of Executive By the Bank During the Effective
Period.
(i) During the Effective Period, the Bank shall have the right to terminate
Executive's employment hereunder for Cause or Without Cause by following the
procedures hereinafter specified.
(ii) During the Effective Period, Executive Period, Executive's employment
may not be terminated for Cause unless and until a notice of intent to terminate
Executive's employment for Cause, specifying the particulars or conduct of
Executive forming the basis for such termination, is given to Executive by the
Committee and, subsequently, a majority of the Board finds, after reasonable
notice to Executive (but in no event less than fifteen (15) days' notice) and an
opportunity for Executive and her counsel to be heard by the Board, that
termination of Executive's employment for Cause is justified. Termination of
Executive's employment for cause shall become effective after such finding has
been made by the Board and five (5) business days after the Board gives to
Executive notice thereof, specifying in detail the particulars of the conduct of
Executive found by the Board to justify such termination for Cause.
(iii) During the Effective Period, the Bank shall have the absolute right to
terminate Executive's employment Without Cause at anytime by vote of a majority
of the Board. Termination of Executive's employment Without Cause shall be
effective five (5) business days after the Board gives to Executive notice
thereof, specifying that such termination is Without Cause.
(iv) Upon a termination of Executive's employment for Cause during the
Effective Period, Executive shall have no right to receive any compensation or
benefits hereunder. Upon a termination of Executive's employment for Cause
during the Effective Period, Executive shall be entitled to receive the benefits
provided in Section 8 hereof.
7. Termination of Employment by Executive During Effective Period.
During the Effective Period, Executive shall be entitled to terminate her
employment with the Bank and , if such termination is for Good Reason or on
account of Disability, to receive the benefits provided in Section 8 hereof.
Executive shall give the Bank notice of voluntary termination of employment,
which notice need specify only Executive's desire to terminate her employment
and, if such termination is for Good Reason or Disability, set forth in
reasonable detail the facts and circumstances claimed by Executive to constitute
Good Reason or Disability. Termination of Executive's employment by Executive
pursuant to this Section 7 shall be effective five (5) business days after
Executive gives notice thereof to the Bank. The Executive shall not be entitled
to the benefits provided in Section 8 upon her death during the Effective
Period.
8. Benefits Upon Termination in Certain Circumstances. Upon the termination
of the employment of Executive by the Bank pursuant to Section 6 (iii) hereof or
by Executive for Good Reason or Disability pursuant to Section 7 hereof,
Executive shall be entitles to receive the following payments and benefits:
(i) The Bank shall pay to Executive, not later than the Termination
Date, a lump sum cash amount equal to the sum of (a) the full base salary earned
by Executive through the Termination Date and unpaid at the Termination Date,
calculated at the highest rate of base salary in effect at any time during the
twelve months immediately preceding the Termination Date, (b) any bonus earned
by Executive but not paid at the Termination Date, (c) the amount of any base
salary attributable to vacation earned by Executive but not taken before the
Termination Date, (d) 1/12 of the amount of the bonus earned by Executive with
respect to the calendar year ending immediately prior to the Termination Date
times the number of months, including the Termination Date times the number of
months, including partial months, from the beginning of the calendar year
including the Termination Date through the Termination Date, and (e) all other
amounts earned by Executive and unpaid at the Termination Date.
(ii) The Bank shall pay to Executive, not later than the Termination
Date, a lump sum cash amount equal to the product of three (3) times Executive's
Compensation.
(iii) The Bank shall maintain in full force and effect for Executive's
continued benefit until the earlier of (a) the expiration of three years after
the Termination Date or (b) Executive's commencement of full time employment
with a new employer, all life, medical, dental, prescription drug and long- and
short-term disability insurance plans, programs or arrangements in which
Executive was entitled to participate at any time during the twelve month period
prior to the Termination Date, provided that Executive's continued participation
is possible under the general terms and provisions of such plans, programs or
arrangements. In the event that Executive's participation in any such plan,
program, or arrangement is prohibited, the Bank shall arrange to provide
Executive with benefits substantially similar to those which Executive is
entitled to receive under such plans, programs or arrangements for such period.
(iv) The Bank shall pay to Executive the cost, in an amount not to
exceed 20% of Executive's annual base salary as in effect immediately prior to
the Change in Control, of professional out-placement services rendered to
Executive within 6 months following termination of the employment of Executive
as and when such costs are incurred.
(v) Executive shall not be required to mitigate the amount of any
payment provided for in this Section 8 by seeking other employment or
otherwise. Except as provided in Section 8 (iii), the amount of any payment
provided for in this Section 8 shall not be reduced by any compensation or other
amounts paid to or earned by Executive as the result of employment with another
employer after the Termination Date or otherwise.
(vi) Any payment made pursuant to the Section 8 must be in compliance
with 12 U.S.C. 1828(k) and any regulations promulgated thereunder. If any
payment is in violation of such Section or regulations, the Executive shall
waive her right to such payments.
9. Legal Fees and Expenses. The Bank shall pay to the Executive all
reasonable legal fees and expenses incurred by the Executive in enforcing this
Agreement if it is determined that the executive's employment with the Bank was
terminated by the Bank Without Cause or, during the Effective Period, by the
Executive for Good Reason (including all such fees and expenses, if any,
incurred in contesting or disputing any such termination or in seeking to obtain
or enforce any right or benefit provided to the Executive by this Agreement or
under any other plan, program or arrangement of the Bank or agreement with the
Bank). The Executive shall be entitles to interest, computed at the "applicable
Federal rate" (within the meaning of Section 7872 (f) (2) (A) of the Internal
Revenue Code of 1986) for term loans, with respect to any amount for which she
is entitled to reimbursement hereunder, from the date on which the Executive
paid such amount until the reimbursement date.
10. Payment Obligations Absolute. The Bank's obligation to pay Executive
the amounts provided for hereunder shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which the Bank may
have against her or anyone else. All amounts payable by the Bank hereunder shall
be paid without notice or demand.
11. Tax Adjustment.
(a) The amount of payments provided for herein shall be increased to the
extent necessary to pay (i) any excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as it may from time to time be amended (the
"Code"), on the payments and benefits provided for herein, and (ii) any such
excise tax and any other taxes (including, without limitation, federal and state
income and employment taxes) on the payments provided for in this Section 11.
The Bank shall pay to Executive the payments provided for in this Section 11 as
soon as practical following the determination of the tax counsel referred to
below. If any such excise tax is imposed as a result of the combination of
payments or benefits provided hereunder and payments or benefits not provided
hereunder, then in calculating the amount of payments required pursuant to this
Section 11, the excise tax shall be treated as first being imposed as a result
of payments and benefits provided hereunder, including the payments provided
pursuant to this Section 11. Tax counsel selected by Executive and reasonable
acceptable to the Bank shall determine whether the increase provided for by this
Section 11(a) shall be required. All determinations of tax counsel shall be
binding on the Bank and Executive. Tax counsel shall determine that payments
shall be increased only if, and to the extent that, it is more likely than not
that the payments or benefits provided for herein, including in this Section 11,
are subject to a tax imposed by the Code. In making the determinations required
by this Section 11m, tax counsel may rely on t benefit consultants accountants
or other experts, The Bank hereby agrees to pay for all reasonable fees and
expenses of such tax counsel and other experts pursuant to this Section 11. (b)
If, subsequent to the payment to Executive of payments pursuant to this Section
11, the tax counsel referred to in this Section 11 reasonable determines that
the amount of the payments paid pursuant to this Section 11 are greater than, or
less than, the amount required to have been paid, Executive shall reimburse the
Bank an amount, or the Bank shall pay to Executive an additional amount,
respectively, based upon such determination.
12. Required Provisions.
(a) The Bank may terminated the Executive's employment at any time, but any
termination by the Bank, other than termination For Cause, shall not prejudice
Executive's right to compensation or other benefits to which she thereby becomes
entitled under this Agreement. Executive shall not have the right to receive
compensation or other benefits pursuant to this Agreement as a result of, or
for any period after, termination For Cause.
(b) If the Executive is suspended and/or temporarily prohibited from
participating in the conduct of the Bank's affairs by a notice served under
Section 8 (e) (3) or (g)(1), of the Federal Deposit Insurance Act (12 U.S.C.
1818 (e)(3) and (g)(1)), the Bank's obligations under this Agreement shall be
suspended as of the date of service unless stayed by appropriate proceedings. If
the charges in the notice are dismissed, the Bank may, in its discretion, (i)
pay the Executive all or part of the compensation withheld while its obligations
hereunder were suspended and (ii) reinstate (in whole or in part) any of its
obligations which were suspended
(c) If the Executive is removed and/or permanently prohibited from
participating in the conduct of the Bank's affairs by an order issued under
Section 8 (e)(4) or (g)(1) of the Federal Deposit Insurance Act (12 U.S.C. 1818
(e)(4) or (g)(1)), all obligations of the Bank under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
Executive shall not be affected.
(d) If the Bank is in default (as defined in Section 3 (x)(1) of the
Federal Insurance Deposit Act), all obligations under this Agreement shall
terminate as of the date of default, but vested rights of the Executive shall
not be affected. Furthermore, this Section 12(d) shall not apply to the extent
that this Agreement was subject to the prior written approval of the Director or
his or her designee.
(e) All obligations of the Bank under this Agreement shall be terminated,
except to the extent determined that continuation of the contract is necessary
for the continued operation of the Bank, (i) by the Director or his or her
designee, at the time the Federal Deposit Insurance Corporation or the
Resolution Trust Corporation enters into an agreement to provide assistance to
or on behalf of the Bank under the authority contained in Section 13(c) of the
Federal Deposit Insurance Act; or (ii) by the Director or his or her designee,
at the time the Director or his or her designee approves a supervisory merger to
resolve problems related to operation of the Bank or when the Bank is determined
by the Director to be in an unsafe or unsound condition. Any rights of the
Executive that have already vested, however, shall not be affected by such
action.
13. Successor; Binding Agreement
(i) The Bank shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, liquidation or otherwise) to all or
substantially all of the business and/or assets of the Bank to agree to assume
and to assume all of the obligations of the Bank under this Agreement upon or
prior to such succession taking place. A copy of such assumption and agreement
shall be delivered to Executive promptly after its execution by the successor.
Failure of the Bank to obtain such agreement upon or prior to any such
successions shall be a breach of this Agreement and shall constitute Good Reason
for Executive to terminate her employment with the Bank under this Agreement.
For purposes of implementing the foregoing, the date on which any such
successions becomes effective shall be deemed the Termination Date. As used in
this Agreement, "Bank" shall mean the Bank as hereinbefore defined and any
successor to its business and/or assets as aforesaid which executes and delivers
the agreement provided for in this Section 13 (i) or which otherwise becomes
bound by all the terms and provisions of this Agreement by operation of law.
(ii) This Agreement is personal to Executive and Executive may not assign
or transfer any part of her rights or duties hereunder, or any compensation due
to her hereunder, to any other person, except that this Agreement shall inure to
the benefit of and be enforceable be Executive's personal or legal
representatives, executors, administrators, heirs, distributes, devisees or
beneficiaries.
14. Modification; Waiver. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in a writing signed by Executive and by such director of the Bank as may be
specifically designated by the Board. Waiver by any party of any breach of or
failure to comply with any provision of this Agreement by the other party shall
not be construed as, or constitute waiver of such provision, or a waiver of any
other breach or, or failure to comply with, any other provision of this
Agreement.
15. Notice. All notices, requests, demands and other communications
required or permitted to be given by either party to the other party to this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered personally or received by certified or registered mail, return receipt
requested, postage prepaid, at the address of the other party as follows:
If to the Bank to:
Southern Financial Bank
Attention: Board of Directors or Secretary
37 E. Main Street
Warrenton, VA 20186
If to Executive to:
Georgia S. Derrico
2954 Burrland
The Plains, VA 22171
Either party hereto may change its address for purposes of this
Section 15 by giving fifteen (15) days' prior notice to the other party hereto.
16. Headings. The headings in this Agreement are inserted for convenience
and reference only and shall not be a part of or control or affect the meaning
of this Agreement.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original.
18. Governing Law. This Agreement has been executed and delivered in the
State of Virginia, and its validity, interpretation, performance, and
enforcement shall be governed by laws of said State but only to the extent not
superseded by federal law. The required provisions in this Agreement were
inserted pursuant to existing applicable federal regulations. Any future
regulatory changes which amend or repeal the required provision in a manner
favorable to the Executive shall be automatically incorporated into this
Agreement upon the effective date of such regulatory change.
19. Payroll and Withholding Taxes. The Bank may withhold from any amounts
payable to Executive hereunder all federal, state, city or other taxes that the
Bank may reasonably determine are required to be withheld pursuant to any
applicable law or regulation.
20. Entire Agreement. Except as explicitly provided for herein, this
Agreement supersedes any and all other oral or written agreements heretofore
made relating to the subject matter hereof and constitutes the entire agreement
of the parties relating to the subject matter hereof. In particular, this
Agreement supersedes and replaces in its entirety the Employment Agreement dated
as of August 1985, between the Executive and the Bank.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SOUTHERN FINANCIAL BANK
By: /s/Joyce V. Clatterbuck
---------------------------
Corporate Secretary
/s/ Georgia S. Derrico
---------------------------