Exhibit 10.6
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Employment Agreement" or the
"Agreement") is made and entered into as of the 9th day of August, 1999 by and
between GILKISON & PATTERSON INVESTMENT ADVISORS, INC., a Virginia corporation,
hereinafter called the "Corporation", and James H. Patterson, hereinafter called
the "Employee", and provides as follows:
RECITALS
WHEREAS, the Corporation desires to retain the services of Employee on
the terms and conditions set forth herein and, for purpose of effecting the
same, the Board of Directors of the Corporation (the "Board of Directors") has
approved this Employment Agreement and authorized its execution and delivery on
the Corporation's behalf to the Employee; and
WHEREAS, the Employee is presently the duly elected and acting
President of the Corporation and, as such, is a key Employee officer of the
Corporation whose continued dedication, availability, advice and counsel to the
Corporation is deemed important to the Board of Directors, the Corporation and
its stockholders; and
WHEREAS, the services of the Employee, his experience and knowledge of
the affairs of the Corporation, and his reputation and contacts in the industry
are valuable to the Corporation; and
WHEREAS, the Corporation wishes to attract and retain such
well-qualified Employees and it is in the best interests of the Corporation and
of the Employee to secure the continued services of the Employee; and
WHEREAS, The Employee owns 49.5% of the Corporation's issued and
outstanding common stock; and
WHEREAS, contemporaneously with the execution of this Employment
Agreement the Corporation is entering into an Agreement and Plan of
Reorganization, dated August 9, 1999, (the "Merger Agreement") with Independent
Community Bankshares, Inc., a Virginia corporation ("ICBI") and The Tredegar
Trust Company, a Virginia corporation and a wholly-owned subsidiary of ICBI
("TTC"), pursuant to which the Corporation would merge with and into TTC or, at
the option of ICBI, another wholly-owned subsidiary of ICBI (the "Merger"); and
WHEREAS, contemporaneously with the execution of this Employment
Agreement the Corporation, Employee, ICBI and Robert C. Gilkison are entering
into a Shareholder Agreement dated August 9, 1999 (the "Shareholder Agreement")
which grants ICBI the option to effect the Merger and sets forth how the
Corporation will be governed in certain respects, pending the effective date of
the Merger; and
WHEREAS, ICBI has paid Employee $600,000.00 in consideration of the
Shareholder
Agreement; and
WHEREAS, if the Merger is consummated, Employee, in his capacity as a
shareholder of the Corporation, shall receive additional consideration with a
value of $1,900,000.00; and
WHEREAS, the Corporation and Employee understand and acknowledge that
the execution of this Agreement is a material inducement for ICBI and TTC to
enter into the Merger Agreement and for ICBI to enter into the Shareholder
Agreement and make the payment to Employee provided therein;
NOW, THEREFORE, to assure the Corporation of the Employee's continued
dedication, the availability of his advice and counsel to the Board of
Directors, and to induce the Employee to remain and continue in the employ of
the Corporation and for other good and valuable consideration, the receipt and
adequacy whereof each party hereby acknowledges, the Corporation and the
Employee hereby agree as follows:
TERMS OF AGREEMENT
Section 1. Employment. (a) Employee shall be employed to perform such
services for the Corporation and/or one or more Affiliates as may be assigned to
Employee by the Corporation from time to time upon the terms and conditions
hereinafter set forth. Employee's services shall be rendered in an executive
capacity and shall be of the type for which Employee is suited by background and
training.
(b) References in this Agreement to services rendered for
the Corporation and compensation and benefits payable or provided by the
Corporation shall include services rendered for and compensation and benefits
payable or provided by any Affiliate. References in this Agreement to the
"Corporation" also shall mean and refer to each Affiliate for which Employee
performs services. References in this Agreement to "Affiliate" shall mean any
business entity that, directly or indirectly, through one or more
intermediaries, is controlled by the Corporation.
(c) On the effective date of the Merger, ICBI shall
assume all of the Corporation's obligations hereunder and after the effective
date of the Merger the term "Corporation", as used herein, shall mean and refer
to ICBI and/or to any successor to ICBI by merger or similar transaction. The
Employee intends and expressly agrees that after the effective date of the
Merger, ICBI and/or to any successor to ICBI by merger or similar transaction
may enforce all rights of the Corporation under this Agreement, including, but
not limited to, the Corporation's rights under Section 11.
(d) Employee acknowledges that he is entering into this
Agreement on his own free will and that he has had the benefit of the advice of,
and is relying solely upon, independent counsel of his own choice.
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Section 2. Term. The term of this Agreement shall commence on the date
hereof and continue until August 9, 2003 (the "Employment Period") unless sooner
terminated under the terms of this Agreement.
Section 3. Exclusive Service. Employee shall devote his best efforts
and full time to rendering services on behalf of the Corporation in furtherance
of its best interests. Employee shall comply with all policies, standards and
regulations of the Corporation now or hereafter promulgated, and shall perform
his duties under this Agreement to the best of his abilities and in accordance
with general business standards of conduct.
Section 4. Cash Compensation. (a) As compensation while employed
hereunder until the effective date of the Merger, Employee and Robert C.
Gilkison shall receive equal annual salaries at whatever level they shall agree;
provided such salaries shall not be greater than the excess of the Corporation's
cash receipts over its cash expenditures. Such salaries shall be payable on such
terms and in such installments as the parties may from time to time mutually
agree upon. After the effective date of the Merger, Employee shall receive an
annual salary of $300,000, payable on such terms and in such installments as the
parties may from time to time mutually agree upon.
(b)(i) Until the effective date of the Merger, Employee
shall receive a semiannual bonus, payable each July 31 and January 31, equal to
fifty percent (50%) of the amount by which the Corporation's cash receipts
exceed its cash expenditures for the six months ending each June 30 and December
31. The Corporation may defer payment of all or any part of the bonus for any
semiannual period, provided any deferred amount shall be paid in full on or
before the effective date of the Merger.
(ii) After the effective date of the Merger, Employee
shall receive a bonus each year equal to $300,000 multiplied by the percentage
growth in investment advisory revenues attributable to clients of Employee and
Robert C. Gilkison over such revenues for the preceding year. For purposes of
this Section 4(b)(ii), revenue shall be computed on the accrual method. For the
year 2001, such bonus will be prorated from the effective date of the Merger to
December 31, 2001 and shall include revenue that is accrued on and collected
after the effective date of the Merger.
For purposes of this Section 4(b)(ii) only, the following will
apply in determining the investment advisory revenues that are attributable to
clients of Employee and Robert C. Gilkison:
(A) All those who are clients of the Corporation on the effective
date of the Merger will be considered clients of Employee and Robert C.
Gilkison, except as set forth in the following paragraph;
(B) If, prior to the effective date of the Merger, the Corporation
and TTC are sharing revenue from a client of the Corporation or TTC, revenue
from such client shall be allocated in the same manner after the effective date
of the Merger; and
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(C) With respect to those who become clients after the effective
date of the Merger:
(1) If the client is introduced by Employee or Robert C.
Gilkison, forty percent (40%) of the investment advisory revenue from such
client shall be counted in calculating Employee's bonus; and
(2) If all or part of the client's account is managed by
Employee or Robert C. Gilkison, sixty percent (60%) of the investment advisory
revenue from such client, multiplied by the percentage of the account managed by
Employee or Robert C. Gilkison, shall be counted in calculating Employee's
bonus.
(c) The Corporation shall withhold state and federal
income taxes, social security taxes and such other payroll deductions as may
from time to time be required by law or agreed upon in writing by Employee and
the Corporation. The Corporation shall also withhold and remit to the proper
party any amounts agreed to in writing by the Corporation and the Employee for
participation in any corporate sponsored benefit plans for which a contribution
is required.
(d) Except as otherwise expressly set forth hereunder, no
compensation shall be paid pursuant to this Agreement in respect of any month or
portion thereof subsequent to any termination of Employee's employment by the
Corporation.
Section 5. Corporate Benefit Plans. Employee shall be entitled to
participate in or become a participant in any employee benefit plan maintained
by the Corporation for which he is or will become eligible on such terms as the
Board of Directors may, in its discretion, establish, modify or otherwise
change. On and after the effective date of the Merger, Employee shall be
entitled to participate in the ICBI plans, as set forth in Section 5.1 of the
Merger Agreement.
Section 6. Expense Account. The Corporation shall reimburse Employee
for reasonable and customary business expenses incurred in the conduct of the
Corporation's business. Such expenses will include business meals, out-of-town
lodging and travel expenses. In no event will there be reimbursement for items
which are not reimbursable under Corporation policy. Employee agrees to timely
submit records and receipts of reimbursable items and agrees that the
Corporation can adopt reasonable rules and policies regarding such
reimbursement. The Corporation agrees to make prompt payment to the Employee
following receipt and verification of such reports.
Section 7. Personal and Sick Leave. Employee shall be entitled to the
same personal and sick leave as the Board of Directors may from time to time
designate for all full-time employees of the Corporation.
Section 8. Vacations. Employee shall be entitled to four (4) weeks of
vacation leave each year, which shall be taken at such time or times as may be
approved by the Corporation and during which Employee's compensation hereunder
shall continue to be paid.
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Section 9. Termination. (a) Notwithstanding the termination of
Employee's employment pursuant to any provision of this Agreement, the parties
shall be required to carry out any provisions of this Agreement which
contemplate performance by them subsequent to such termination. In addition, no
termination shall affect any liability or other obligation of either party which
shall have accrued prior to such termination, including, but not limited to, any
liability, loss or damage on account of breach. No termination of employment
shall terminate the obligation of the Corporation to make payments of any vested
benefits provided hereunder or the obligations of the Employee under Sections 11
and 12.
(b) This Agreement shall terminate upon death of the
Employee. The Corporation may terminate Employee's employment under this
Agreement, after having established the Enployee's disability by giving to the
Employee written notice of its intention to terminate his employment for
disability, and his employment with the Corporation shall terminate effective on
the 90th day after receipt of such notice (the "Disability Effective Date") if
within 90 days after such receipt the Employee shall fail to return to the
full-time performance of the essential functions of his position (and if the
Employee's disability has been established pursuant to the definition of
"disability" set forth below). For purposes of this Agreement, "disability"
means either (i) disability which after the expiration of more than 13
consecutive weeks after its commencement is determined to be total and permanent
by a physician selected and paid for by the Corporation or its insurers, and
acceptable to the Employee or his legal representative, which consent shall not
be unreasonably withheld, or (ii) disability as defined in the policy of
disability insurance maintained by the Corporation for the benefit of the
Employee, whichever shall be more favorable to the Employee. Notwithstanding any
other provision of this Agreement, the Corporation shall comply with all
requirements of the Americans with Disabilities Act, 42 U.S.C. ss. 12101 et.
seq.
(c) The Corporation may terminate the Employee's
employment, in its sole discretion at any time during the Employment Period,
with or without "Cause."
(d) The Employee's employment may be terminated by the
Employee, in the Employee's sole discretion at any time during the Employment
Period, with or without "Good Reason."
(e) For purposes of this Agreement,
(i) "Cause" shall mean the Employee's:
(A) continued willful failure, without
Cure (as defined below), to perform substantially the Employee's duties with the
Corporation (other than any such failure resulting from incapacity due to
physical or mental illness);
(B) acts or conduct involving
embezzlement, theft, larceny, fraud, or any other material acts of dishonesty by
the Employee in the performance of the Employee's duties;
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(C) conviction of, or entrance of a
plea of guilty or nolo contendere to, a felony or any crime by the Employee
involving moral turpitude which crime of moral turpitude is demonstrably
injurious to the Corporation or client relationships;
(D) acts or conduct which result in the
Employee becoming subject to an order of a governmental agency or other
regulatory body which prevents or materially restricts the Employee in
performing the Employee's duties hereunder;
(E) reporting to work under the
influence of alcohol, narcotics or unlawful controlled substances, or any other
material violation, without Cure (to the extent such other material violation is
capable of Cure), of any Corporation employment policy or procedure;
(F) conduct that is demonstrably and
materially injurious to the Corporation without Cure (to the extent such conduct
is capable of Cure); or
(G) breach of any of the provisions of
Section 11 of this Agreement.
(ii) "Cure" shall mean, following the giving of
notice of Cause or Good Reason, the Employee or the Corporation, as the case may
be, shall have cured the Cause or Good Reason within thirty (30) days of such
notice having been given.
(iii) "Good Reason" shall mean a termination by
Employee resulting from a material breach by the Corporation of a material
obligation of the Corporation under this Agreement without Cure. A breach
described in this clause shall include, but not be limited to:
(A) a detrimental alteration or failure
to comply with the terms of the Employee's employment as they relate to the
Employee's position, responsibilities, reporting and duties, or the compensation
and benefit arrangements applicable to the Employee;
(B) the failure of the Corporation to
obtain an agreement reasonably satisfactory to the Employee from any successor
of the Corporation to assume and agree to perform this Agreement, as
contemplated in Section 13(b) hereof; or
(C) any termination of the Employee's
employment which is not effected pursuant to the terms of this Agreement.
(f) Any termination by the Corporation with or without
Cause, or by the Employee with or without Good Reason, shall be communicated by
Notice of Termination to the other party hereto in accordance with this Section
and Section 16 of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, and (ii) to the extent applicable,
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sets forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Employee's employment under the provision so
indicated. The failure by the Employee or the Corporation to set forth in the
Notice of Termination any fact or circumstance which contributes to a showing of
Good Reason or Cause shall not waive any right of the Employee or the
Corporation hereunder or preclude the Employee or the Corporation from asserting
such fact or circumstance in enforcing the Employee's or the Corporation's
rights hereunder.
(g) "Date of Termination" means if the Employee's
employment is terminated (i) by the Corporation for Cause or by the Employee for
Good Reason, the date that is one day after the last day of the cure period, if
any, (ii) by the Corporation other than for Cause or Disability, or by the
Employee without Good Reason, the date that is 30 days after the date on which
the Corporation or the Employee notifies the Employee or the Corporation, as
applicable, of such termination, and (iii) by reason of death or disability, the
date of death of the Employee or the Disability Effective Date, as the case may
be.
Section 10. Obligations of the Corporation upon Termination.
(a) If, during the Employment Period, the Corporation
shall terminate the Employee's employment other than for Cause, death or
disability or the Employee shall terminate employment for Good Reason, then the
Corporation shall pay to the Employee in equal monthly installments for the
remainder of the term of this Agreement or 24 months, whichever is longer, the
amounts set forth below:
(i) To the extent not theretofore paid, the
Employee's accrued salary through the Date of Termination, any bonus for a prior
year that remains unpaid; and
(ii) The Employee's salary for 24 months or the
remainder of the term of this Agreement, whichever is longer.
Additionally, after the end of the year in
which his employment terminates, the Corporation shall pay Employee a pro rata
portion of any bonus that would have been payable under Section 4(b) if his
employment had not terminated, based on the number of days in the year that
elapse before this employment terminates, divided by the number of days in the
year.
(b) If, during the Employment Period, the Corporation
shall terminate the Employee's employment for Cause or the Employee shall
terminate his employment without Good Reason, then
(i) the Corporation shall pay to the Employee in
a lump sum in cash within 30 days after the Date of Termination to the extent
not theretofore paid, the Employee's accrued salary through the Date of
Termination and any bonus for a prior year that remains unpaid; and
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(ii) the Corporation shall continue to pay
Employee's salary monthly for the 24 months that follow the Date of Termination.
(c) If, during the Employment Period, the Employee is
terminated due to disability, as defined in Section 9(b) hereof, then the
Corporation shall pay to the Employee in a lump sum in cash within 30 days after
the Date of Termination to the extent not theretofore paid, the Employee's
accrued salary through the Date of Termination and any bonus for a prior year
that remains unpaid.
Additionally, after the end of the year in which his
employment terminates, the Corporation shall pay Employee a pro rata portion of
any bonus that would have been payable under Section 4(b) if his employment had
not terminated, based on the number of days in the year that elapse before this
employment terminates, divided by the number of days in the year.
(d) If, during the Employment Period, the Employee shall
die, then the Corporation shall pay to the Employee's personal representative in
a lump sum in cash within 30 days after the Date of Termination to the extent
not theretofore paid, the Employee's accrued salary through the Date of
Termination and any bonus for a prior year that remains unpaid.
Additionally, after the end of the year in which his
employment terminates, the Corporation shall pay to Employee's personal
representative a pro rata portion of any bonus that would have been payable
under Section 4(b) if Employee's employment had not terminated, based on the
number of days in the year that elapse before this employment terminates,
divided by the number of days in the year.
(e) Notwithstanding anything in this Agreement to the
contrary, if Employee breaches Section 11, Employee will not thereafter be
entitled to receive any further compensation or benefits pursuant to this
Section 10. All payments to Employee pursuant to Sections 10(a)(ii) and
10(b)(ii) shall be solely in exchange for Employee's covenants and agreements
set forth in Section 11 and shall not be deemed to be severance payments.
Section 11. Confidentiality/Nondisclosure/Noncompetition/
Nonsolicitation. (a)(i) The Employee acknowledges:
(A) The Corporation's business has been built over a period of 18
years through the efforts of Employee and Robert C. Gilkison; and
(B) That all or substantially all relationships with the
Corporation's customers are personal to Employee and Robert C. Gilkison; and
(C) That the Corporation has customers in 28 states and that a
business that competes with the Corporation can be carried on anywhere within
the United States by telephone
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and advanced communication techniques and that the geographic restriction in
Section 11(c) is necessary to protect the Corporation; and
(D) That it is his intent, if the Merger is consummated, that the
Corporation's goodwill, including the value of the long term relationships he
has developed with the Corporation's customers, shall become the property of
ICBI.
(ii) By entering into this Agreement, the Employee
intends:
(A) To induce the Corporation and ICBI to enter into the
Shareholder Agreement;
(B) To induce ICBI to pay $600,000.00 to Employee
pursuant to the Shareholder Agreement;
(C) To induce the Corporation and ICBI to enter into the
Merger Agreement; and
(D) To induce ICBI to consummate the Merger.
(b) Employee covenants and agrees that any and all information
concerning the customers, businesses and services of the Corporation of which he
has knowledge or access as a result of his association with the Corporation in
any capacity shall be deemed confidential in nature and shall not, without the
prior written consent of the Corporation, be directly or indirectly used,
disseminated, disclosed or published by Employee to third parties other than in
connection with the usual conduct of the business of the Corporation. Such
information shall expressly include, but shall not be limited to, information
concerning the Corporation's asset management methods, other trade secrets,
business operations, business records, customer lists or other customer
information. Upon termination of employment the Employee shall deliver to the
Corporation all originals and copies of documents, forms, records or other
information, in whatever form it may exist, concerning the Corporation or its
business, customers, products or services. In construing this provision it is
agreed that it shall be interpreted broadly so as to provide the Corporation
with the maximum protection. This Section 11(b) shall not be applicable to any
information which, through no misconduct or negligence of Employee, is disclosed
to the public by anyone other than Employee or that Employee, after notifying
the Corporation, is compelled to disclose by legal process.
(c) During the term of this Agreement and throughout any further
period that he is an officer or employee of the Corporation, and for a period of
twenty-four (24) months from and after the date that Employee is (for any
reason) no longer employed by the Corporation or for a period of twenty-four
(24) months from the date of entry by a court of competent jurisdiction of a
final judgment enforcing this covenant in the event of a breach by Employee,
whichever is later, Employee covenants and agrees that he will not, directly or
indirectly, either for himself or as a principal, agent, employee, employer,
stockholder, co-partner or in any other individual or
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representative capacity whatsoever provide Competitive Services (as defined in
Section 11(e)) anywhere in the United States of America.
This Section 11(c) shall not preclude Employee from merely
becoming the holder of any publicly traded stock, provided Employee does not
acquire a stock interest in excess of 5%.
(d) While employed by the Corporation and for two years after the
Employee's termination of employment with the Corporation for any reason, the
Employee will not, directly or indirectly, on behalf of the Employee or any
other person or entity, solicit or induce, or attempt to solicit or induce, any
person employed by the Corporation during the two-year period immediately prior
to the Employee's termination, to terminate his or her relationship with the
Corporation and/or to enter into an employment or agency relationship with the
Employee or with any other person or entity with whom the Employee is
affiliated.
(e) While employed by the Corporation and for two years after the
Employee's termination of employment with the Corporation for any reason, the
Employee will not, except to the extent necessary to carry out his duties as an
employee of the Corporation, directly or indirectly provide Competitive Services
(as defined below) to any Customer (as defined below), directly or indirectly,
on behalf of the Employee or any other person or entity, solicit or divert away
or attempt to solicit or divert away any Customer of the Corporation for the
purpose of selling or providing Competitive Services, provided the Corporation
is then still engaged in the sale or provision of Competitive Services.
For purposes of this Agreement, the term "Customer" means any
individual or entity to whom or to which the Corporation provided Competitive
Services (or, within one year of the Date of Termination, had identified as a
prospect for the provision of Competitive Services, and with whom or with which
the Employee had, alone or in conjunction with others, material contact) during
the year immediately prior to the Date of Termination.
For purposes of this Agreement, the Employee shall have had material
contact with a person or entity if (i) the Employee had direct business dealings
with the person or entity on behalf of the Corporation; (ii) the Employee was
responsible for supervising or coordinating the business dealings between the
person or entity and the Corporation; (iii) the Employee was responsible for
supervising or coordinating the identification of such person or entity as a
prospective Customer of the Corporation; or (iv) the Employee obtained trade
secrets or confidential information about the person or entity as a direct
result of the Employee's business involvement with the person or entity on
behalf of the Corporation.
For purposes of this Agreement, "Competitive Services" means the
investment advisory services of the type that the Corporation provides as of the
Date of Termination.
(f) The Employee agrees that the covenants in this Section 11 are
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reasonably necessary to protect the legitimate interests of the Corporation, are
reasonable with respect to time and territory and do not interfere with the
interests of the public. The Employee further agrees that the descriptions of
the covenants contained in this Section 11 are sufficiently accurate and
definite to inform the Employee of the scope of the covenants. Finally, the
Employee agrees that the consideration set forth in the Merger Agreement, the
Shareholder Agreement and in this Agreement is full, fair and adequate to
support the Employee's obligations hereunder and the Corporation's rights
hereunder before and after the effective date of the Merger. The Employee
acknowledges that in the event the Employee's employment with the Corporation is
terminated for any reason, the Employee will be able to earn a livelihood
without violating such covenants. The parties have attempted to limit the
Employee's right to compete only to the extent necessary to protect the
Corporation from unfair competition. The parties recognize, however, that
reasonable people may differ in making such a determination. Accordingly, the
parties intend that the covenants contained in this Section 11 to be completely
severable and independent, and any invalidity or unenforceability of any one or
more such covenants will not render invalid or unenforceable any one or more of
the other covenants. The parties further agree that, if the scope or
enforceability of a covenant contained in this Section 11 is in any way disputed
at any time, a court or other trier of fact may modify and reform such provision
to substitute such other terms as are reasonable to protect the Corporation's
legitimate business interests.
(g) In the event Employee shall desire to engage in any activity
which Employee believes could breach the covenants in this Section 11, Employee
may give notice of such desired activity to the Corporation, and the Corporation
shall advise Employee in writing, within thirty (30) days following receipt of
such notice, of its determination as to whether the proposed activity is
permissible hereunder, or whether the Corporation is willing to permit such
activity even if the Corporation believes such activity is not permissible
hereunder.
Section 12. Injunctive Relief, Damages, Etc. The Employee agrees that,
given the nature of the positions held by Employee with the Corporation, each
and every one of the covenants and restrictions set forth in Section 11 above
are reasonable in scope, length of time and geographic area and are necessary
for the protection of the significant investment of the Corporation in
developing, maintaining and expanding its business. Accordingly, the parties
hereto agree that in the event of any breach by Employee of any of the
provisions of Section 11 that monetary damages alone will not adequately
compensate the Corporation for its losses and, therefore, that it shall be
entitled to any and all legal or equitable relief available to it, specifically
including, but not limited to, injunctive relief, and the Employee shall be
liable for all damages, including actual and consequential damages, costs and
expenses, including legal costs and actual attorneys' fees, incurred by the
Corporation as a result of taking action to enforce, or recover for any breach
of, Section 11. The covenants contained in Section 11 shall be construed and
interpreted in any judicial proceeding to permit their enforcement to the
maximum extent permitted by law.
Section 13. Binding Effect/Successors. (a) This Employment Agreement
shall be binding upon and inure to the benefit of the Corporation and Employee
and their respective heirs, legal representatives, executors, administrators,
successors and assigns. Neither this Agreement, nor any
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of the rights hereunder, shall be assignable by the Employee or any beneficiary
or beneficiaries designated by the Employee.
(b) The Corporation 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 Corporation, or either
one of them, by agreement in form and substance satisfactory to the Employee, to
expressly assume and agree to perform this Agreement in its entirety. Failure of
the Corporation to obtain such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle the Employee to
the compensation described in Section 10(a).
Section 14. Governing Law. This Employment Agreement shall be subject
to and construed in accordance with the laws of Virginia.
Section 15. Invalid Provisions. The invalidity or unenforceability of
any provision of this Agreement shall not affect the validity or enforceability
of any other provision of this Agreement, which shall remain in full force and
effect. Any provision in this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be valid and enforceable to the
fullest extent permitted by law without invalidating or affecting the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 16. Notices. Any and all notices, designations, consents,
offers, acceptance or other communications provided for herein shall be given in
writing and shall be deemed properly delivered if delivered in person or by
registered or certified mail, return receipt requested, addressed in the case of
the Corporation to its registered office or in the case of Employee to his last
known address.
Section 17. Litigation. If litigation shall be brought to challenge,
enforce or interpret any provision of this Agreement, and such litigation ends
with judgment against a party, that party shall indemnify the other for
reasonable attorneys' fees and disbursements incurred in such litigation.
Section 18. Entire Agreement.
(a) This Employment Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
and all other agreements, either oral or in writing, among the parties hereto
with respect to the subject matter hereof.
(b) This Employment Agreement may be executed in one or more
counterparts, each of which shall be considered an original copy of this
Agreement, but all of which together shall evidence only one agreement.
Section 19. Amendment and Waiver. This Employment Agreement may not be
amended except in accordance with the Shareholder Agreement by an instrument in
writing signed by or on
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behalf of each of the parties hereto. No provision of this Agreement may be
waived, except in accordance with the Shareholder Agreement. Any such waiver
shall be in writing, signed by the Employee and on behalf of the Corporation by
such officer as may be specifically designated by the Board of Directors. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of any similar or
dissimilar provision or conditions at the same or at any prior or subsequent
time.
Section 20. Captions. The captions used in this Employment Agreement
are intended for descriptive and reference purposes only and are not intended to
affect the meaning of any Section hereunder.
[execution page to follow]
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IN WITNESS WHEREOF, the Corporation has caused this Employment
Agreement to be signed by its duly authorized officer and Employee has hereunto
set his hand and seal on the day and year first above written.
GILKISON & PATTERSON INVESTMENT
ADVISORS, INC.
By:
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Title:
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ATTEST:
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EMPLOYEE
(SEAL)
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The undersigned agrees that it is legally bound by the provisions of
Section 1(c) of this Employment Agreement.
INDEPENDENT COMMUNITY BANKSHARES, INC.
By:
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Joseph L. Boling
Chairman and Chief Executive Officer
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