Exhibit 10
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made by and between
Tysons National Bank (the "Bank"), Tysons Financial Corporation (the "Company")
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, (the "Executive") this ____ day of October, 1996.
RECITALS:
WHEREAS, The Bank and the Company presently employ the Executive as
President and Chief Executive Officer pursuant to an Employment Agreement dated
February 9, 1990, as amended ("Prior Agreement"), which the parties desire to
supersede and replace with this Agreement; and
WHEREAS, The Board of Directors of the Bank (the "Bank Board") and the
Board of Directors of the Company (the "Company Board") recognize that the
Executive's contribution to the growth and success of the Bank since the Bank's
creation has been substantial. The Bank Board and the Company Board desire to
provide for the continued employment of the Executive and to make certain
changes in the Executive's employment arrangements which the Bank Board and the
Company Board have determined will reinforce and encourage the continued
dedication of the Executive to the Bank and the Company and will promote the
best interests of the Bank, the Company and its stockholders.
WHEREAS, The Executive is willing to continue to serve the Bank and the
Company on the terms and conditions herein provided.
NOW THEREFORE, In consideration of the foregoing, the mutual covenants
contained herein, the recitals set forth above, which are hereby incorporated by
reference herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Employment. The Bank and the Company shall continue to employ the
Executive, and the Executive shall continue to serve the Bank and the Company,
as President and Chief Executive Officer upon the terms and conditions set forth
herein. The Executive shall have such authority and responsibilities consistent
with her position and which may be set forth in the Bank's or the Company's
bylaws or assigned by the Bank Board or the Company Board from time to time. The
Executive shall devote her full business time, attention, skill and efforts to
the performance of her duties hereunder, except during periods of illness or
periods of vacation and leaves of absence consistent with Bank and/or Company
policy. The Executive may devote reasonable periods to service as a director or
advisor to other organizations, to charitable and community activities, and to
managing her personal investments, provided that such activities do not
materially interfere with the performance of her duties hereunder and are not in
conflict or competitive with, or adverse to, the interests of the Bank and the
Company.
2. Term. Unless earlier terminated as provided herein, the Executive's
employment under this Agreement shall be for an initial term (the "Initial
Term") of four (4) years, commencing as of January 1, 1996, and terminating on
December 31, 1999; provided, however, this Agreement shall be automatically
renewed after the Initial term for additional term(s) of one (1) year ("Renewal
Terms") unless either party gives the other written notice of non-renewal not
later than six (6) months prior to the expiration of the Initial Term or any
Renewal Term.
3. Compensation and Benefits.
3.1 Base Compensation. The Bank shall pay the Executive a base
annual salary ("Base Compensation") at a rate of not less than $130,000 per
annum commencing January 1, 1996, and not less than $140,000 commencing January
1, 1997, in accordance with the salary payment practices of the Bank. The Bank
Board (upon recommendation of the Personnel and Compensation Committee) shall
review
the Executive's Base Compensation at least annually (commencing for calendar
year 1998 and each year thereafter) and may increase the Executive's Base
Compensation if it determines in its sole discretion that an increase is
appropriate. In making such determination, the Bank Board shall review peer
group CEO compensation, and such other factors as the parties may agree upon;
provided however, Base Compensation shall be increased by at least the Consumer
Price Index. As used herein, the Term "Consumer Price Index" shall mean the
"United States Bureau of Labor Statistics, Consumer Price Index for Urban Wage
Earners and Clerical Workers" all items, Washington, D.C. standard Metropolitan
Statistical Area Average (1982-1984 = 100.00) CPI-W, and any revisions of or
substitutes for that Index.
3.2 Directors Fees. The Bank and the Company shall also pay to
the Executive Directors fees on the same basis as other directors of the Bank
and the Company commencing January 1, 1996.
3.3 Short Term Performance Bonus. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for earnings and asset growth
established by the Bank Board, in consultation with the Executive, the Executive
shall be entitled to receive a short term performance bonus ("Short Term
Performance Bonus"), in cash, as a percentage of Base Compensation, payable
within thirty (30) days after the completion of the year end financial
statements as follows, with earnings growth and asset growth carrying a fifty
percent (50%) weight and the payout between 10% and 30% being prorated on the
basis of the percentage of performance level:
payout performance level
------ -----------------
10% 90%
15% 100%
20% 110%
30% 125% or more
For example, if Base Compensation for the year in question was $130,000 and the
Executive's performance level was 95% of asset growth and 105% of earnings
growth, the Short Term Performance Bonus would be $19,500, calculated as
follows:
Target Base Compensation Weight Payout Bonus
------ ----------------- ------ ------ -----
Asset Growth ($130,000) x (.5) x (12.5%) = $ 8,125
Earnings ($130,000) x (.5) x (17.5%) = $11,375
-------
Total $19,500
3.4 Long Term Performance Bonus. Provided the Bank achieves
appropriate regulatory ratings for safety and soundness, and based upon the
performance of the Bank in relation to targets for earnings and asset growth
established by the Bank Board, in consultation with the Executive, the Executive
shall be entitled to receive a long term performance bonus ("Long Term
Performance Bonus"), in the form of stock options for a dollar amount of shares
calculated as a percentage of Base Compensation, to be awarded within thirty
(30) days after the completion of the year end financial statements as follows,
with earnings growth and asset growth carrying a fifty percent (50%) weight and
the payout between .25 and 1.00 being prorated on the basis of the percentage of
performance level:
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payout performance level
------ -----------------
.25 90%
.50 100%
.75 110%
1.00 125% or more
Such stock options shall constitute incentive stock options defined under
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code") and
shall be issued under the 1992 Stock Option Plan, as amended as of the issuance
date, or any successor stock option plan or plans (the "Plan"), at an exercise
price equal to the fair market value of the underlying shares at the issuance
date, under terms and conditions substantially in the form of the Stock Option
Grant Agreement attached hereto as Exhibit A.
For example, if Base Compensation for the year in question was $130,000 and at
the time of the award, the price of the shares of common stock was $10 per
share, and the Executive's performance level was 102% of asset growth and 93% of
earnings growth, the Long Term Performance Bonus would be an award of the option
to purchase 5704 shares at $10 per share, calculated as follows:
Target Base Compensation Weight Payout Bonus
------ ----------------- ------ ------ -----
Asset Growth ($130,000) x (.5) x (.55) = $ 35,750
Earnings ($130,000) x (.5) x (.3275) = $ 21,287.50
-----------
Total $ 57,037.50
Total = $57,037.50 / $10 per share = 5704 option shares
3.5 Grant of Option Upon Execution. Upon execution of this
Agreement, the Company shall grant to the Executive an option ("Execution
Option") to purchase six thousand (6,000) shares of stock of the Company at an
exercise price of Eleven Dollars ($11). The Execution Option shall vest
immediately as to 100% of the shares subject to such Option. Such stock option
shall constitute an incentive stock option under Code section 422, if the
exercise price equals or exceeds the fair market value of the underlying shares
at the issuance date, and shall be issued under the Plan, as amended as of the
issuance date, under the terms and conditions contained in the Stock Option
Grant Agreement attached hereto as Exhibit B, which shall be executed between
the parties as of the date of the execution of this Agreement.
3.6 Other Benefit Plans. The Executive shall continue to
participate in all retirement, welfare, life and health insurance, and other
benefit plans or programs of the Bank now or hereafter applicable to the
Executive or applicable generally to employees of the Bank or to a class of
employees that includes senior executives of the Bank; provided (i) that during
any period during the Term that the Executive is subject to a Disability (as
defined in Paragraph 4.12), the amount of the Executive's compensation provided
under this Paragraph 3 shall be reduced by the sum of the amounts, if any, paid
to the Executive for the same period under any disability benefit or pension
plan of the Bank or the Company; and (ii) that the Executive's participation in
the Plan shall be limited to the participation set forth in paragraphs 3.4 and
3.5, unless otherwise determined by the Bank Board and/or the Company Board.
3.7 Automobile Expenses. The Bank shall continue to provide to
the Executive an automobile owned or leased by the Bank of a make and model
appropriate to the Executive's status or, in lieu thereof, shall provide the
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Executive with an annual allowance of not less than $7,500 to partially cover
the cost of the business use of an automobile owned or leased by the Executive.
3.8 Dues reimbursement. The Bank shall continue to reimburse the
Executive's reasonable expenses for dues for one country club and one dining
club membership held by the Executive. The Bank shall pay the initiation fee for
a membership in the name of Executive in a country club of the Executive's
choice, not to exceed Twenty Thousand Dollars ($20,000) and to be payable in
annual installments not to exceed Seven thousand dollars ($7,000). In the event
that Executive terminates this Agreement during the Initial Term (other than a
termination pursuant to Paragraph 4.15), or exercises her right not to renew at
the end of the Initial Term or any Renewal Term; or in the event that the Bank
terminates Executive's employment for Just Cause pursuant to paragraph 4.13,
Executive shall reimburse the Bank the initiation fee paid by the Bank. Such
reimbursement shall be paid on or before the Termination Date (as defined in
paragraph 4.3).
3.9 Expense Reimbursement. The Bank shall continue to reimburse
the Executive for travel, seminar, and other expenses related to the Executive's
duties which are incurred and accounted for in accordance with the historic
practices of the Bank.
3.10 Bonus Targets for 1996. For the period January 1, 1996,
through June 30, 1996, the budgetary goals for earnings and asset growth in
connection with the bonus to be paid to Executive after the end of the fiscal
year, shall be the goals heretofore established by the Bank Board for that
period. The bonus for that period shall be determined by the Bank Board upon the
recommendation of the Personnel and Compensation Committee. For the Period July
1, 1996, through December 31, 1996, the targets to be used in connection with
Paragraphs 3.3 and 3.4, shall be established by the Bank Board, in consultation
with the Executive, and the bonus for that period will be calculated in
accordance with Paragraphs 3.3 and 3.4.
4. Termination.
4.1 The Executive's employment under this Agreement may be
terminated prior to the end of the Initial Term or any Renewal Term only as
follows:
4.11 Upon the death of the Executive.
4.12 By the Bank due to the Disability of the Executive
upon delivery of a Notice of Termination (as defined in
Paragraph 4.2) to the Executive; As used herein, "Disability"
shall mean the inability of the Executive, due to illness,
accident, or any other physical or mental incapacity, to fulfill
her obligations hereunder for a period of one hundred eighty
(180) consecutive days during the term hereof.
4.13 The Bank or the Company may, by written notice to
the Executive, immediately terminate her employment at any time,
for Just Cause. The Executive shall have no right to receive
compensation or other benefits for any period after termination
for Just Cause. Termination for "Just Cause" shall mean
termination because of, in the good faith determination of the
Company Board and the Bank Board, the Executive's personal
dishonesty, breach of fiduciary duty involving personal profit,
willful failure to perform stated duties, repeated refusal to
carry out the written directions of the Bank Board or the
Company Board, willful violation of any law, rule or regulation
(other than traffic violations or similar offenses), final
cease-and-desist order, or material breach of any provision of
this Agreement. No act, or failure to act, on the Executive's
part shall be considered "willful" unless she has acted, or
failed to act,
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with an absence of good faith and without a reasonable belief
that her action or failure to act was in the best interests of
the Company or the Bank. Notwithstanding the foregoing, the
Executive shall not be deemed to have been terminated for Just
Cause unless there shall have been delivered to the Executive a
copy of a resolution duly adopted by the affirmative vote of not
less than a two thirds (2/3) majority of the entire membership
of the Company Board and the Bank Board at a meeting of such
Boards called and held for such purpose (after reasonable notice
to the Executive and an opportunity for the Executive to be
heard before such Boards), finding that in the good faith
opinion of such Boards the Executive was guilty of conduct
constituting Just Cause and specifying the particulars thereof
in detail.
4.14 By the Bank or the Company, at any time, without
Just Cause, upon delivery of a Notice of Termination (as defined
in paragraph 4.2) to the Executive. No Notice of Termination
shall be given under this section unless there shall have been a
vote of not less than a majority of the entire membership of the
Company Board and the Bank Board at a meeting of such Boards
called and held for that purpose.
4.15 By the Executive for Just Cause by delivering a
Notice of Termination (as hereinafter defined in paragraph 4.2) stating
with particularity the reasons for the giving of the Notice of
Termination. Upon receipt of the Notice of Termination under this
paragraph 4.15, the Bank and/or the Company shall have a thirty (30)
day period within which to cure the circumstances set forth in the
Notice of Termination given by the Executive. As used in this paragraph
4.15, Just Cause shall mean the occurrence of any of the following
events that have not been consented to in writing by the Executive in
advance: (i) the requirement that the Executive move her personal
residence, or perform her principal executive functions, more than 35
miles from her primary office; (ii) the assignment to the Executive of
duties and responsibilities materially different from those normally
associated with her position as referenced in Paragraph 1 hereof; (iii)
a failure to elect or re-elect the Executive to the Bank Board or the
Company Board; or (iv) a material diminution or reduction in the
Executive's responsibilities or authority (including reporting
responsibilities) in connection with her employment with the Bank.
4.2 "Notice of Termination" shall mean a written notice of
termination from the Bank or the Executive which specifies an effective date of
termination, indicates the specific termination provision in this Agreement
relied upon, and 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. A Notice of Termination by the Bank without Just
Cause shall be sufficient if it states that the termination is without Just
Cause without further detail.
4.3 "Termination Date" shall mean, in the case of the Executive's
death, her date of death or the date upon which the employment of the Executive
ceases.
4.4 If the Executive's employment with the Bank and/or the Company
shall be terminated during the Term (i) by reason of the Executive's death, or
(ii) by the Bank and/or the Company for Disability or Just Cause, the Bank shall
pay to the Executive (or in the case of her death, the Executive's estate)
within fifteen (15) days after the Termination Date a lump sum cash payment
equal to all Base Compensation and Directors fees earned through the Termination
Date. If the Termination Date occurs after the end of a fiscal year but before
Executive has received any Short Term and/or Long Term Performance Bonuses to
which she is
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entitled for that fiscal year pursuant to the provisions of paragraphs 3.3 and
3.4, then Executive shall also be paid the Long Term and Short Term Performance
Bonuses in accordance with the provisions of Paragraphs 3.3 and 3.4 above.
Vested rights of the Executive relating to such matters as her 401(k) account,
ESOP account, qualified pension plan and the like shall not be effected by such
termination, but shall be governed by the terms of such plans and accounts.
4.5 If the Executive's employment with the Bank and/or the
Company shall be terminated by the Bank and/or the Company without Just Cause
(pursuant to paragraph 4.14), the Executive shall be entitled to the following:
4.51 The Bank and/or the Company shall pay the
Executive (i) in cash within fifteen (15) days after Termination
Date an amount equal to all Base Compensation and Directors Fees
earned through the Termination Date; and (ii) in the event that
the Termination Date occurs after the end of a fiscal year but
before Executive has received any Short Term and/or Long Term
Performance Bonuses to which she is entitled for that fiscal
year pursuant to the provisions of paragraphs 3.3 and 3.4, then
Executive shall also be paid the Long Term and Short Term
Performance Bonuses in accordance with the provisions of
Paragraphs 3.3 and 3.4 above.
4.52 For the period from the Termination Date through
the end of the Initial Term or the Renewal Term, the Bank or the
Company shall pay to the Executive in cash at the end of each
regular pay period of the Bank, an amount equal to the Base
Compensation to which Executive is entitled pursuant to
Paragraph 3.1 above; provided, however, in no event shall
Executive be paid under this subsection for a period of less
than twelve months.
4.53 For the period during which the Executive shall be
entitled to payments under Paragraph 4.52 above (the
"Continuation Period"), the Bank shall at its expense continue
on behalf of the Executive and her dependents and beneficiaries
the life insurance, disability, medical, dental and
hospitalization benefits provided to the Executive as of the
Termination Date, or at any time thereafter to other similarly
situated executives who continue in the employ of the Bank
during the Continuation Period. The coverage and benefits
(including deductibles and costs) provided in this Paragraph
4.53 during the Continuation Period shall be no less favorable
to the Executive and her dependents and beneficiaries than the
benefits available to Executive as of the Termination Date. The
Bank's obligation hereunder with respect to the foregoing
benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Bank may reduce the coverage of
any benefits it is required to provide the Executive hereunder
as long as the aggregate coverages and benefits of the combined
benefit plans is no less favorable to the Executive than the
coverages and benefits required to be provided hereunder; and
4.54 The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by
seeking other employment or otherwise and no such payment shall
be offset or reduced by the amount of any compensation or
benefits provided to the Executive in any subsequent employment
except as provided in Paragraph 4.53.
4.6 The severance pay and benefits provided for in this
Paragraph 4 shall be in lieu of any other severance or termination pay to which
the Executive may be entitled under any Bank severance or termination plan,
program, practice or arrangement, except that termination of Executive's
employment by the Bank and
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or the Company without Just Cause within six (6) months before or upon the
occurrence of a Change in Control (as defined in Paragraph 5.13) or by the
Executive after the occurrence of a Change in Control, as hereinafter defined
shall be covered by the provisions of paragraph 5 below and the provisions of
this paragraph 4 shall not apply.
4.7 In the event that the Bank Board and/or the Company Board
elects not to renew Executive's contract pursuant to Paragraph 2, Executive
shall be entitled to Base Compensation, Directors fees, Short Term and Long Term
Performance Bonuses payable from the date of the Notice of Termination pursuant
to Paragraph 2 to the end of the Initial Term or Renewal Term, as the case may
be. In addition, Executive shall be entitled to be paid Base Compensation from
the Termination Date for an additional period of six (6) months (the "Post
Expiration Period"). During the Post Expiration Period, the Executive shall be
entitled to the benefits set forth in Paragraph 4.53.
4.8 In the event that the Executive terminates this Agreement
for Just Cause pursuant to Paragraph 4.15, she shall be entitled to be paid her
Base Compensation for an additional period of six (6) months after the
Termination Date.
4.9 This Agreement shall terminate immediately without further
liability or obligation of the Bank or the Company to the Executive (i) if the
Bank is closed or taken over by the Office of the Comptroller of the Currency or
other supervisory authority, including the Federal Deposit Insurance
Corporation; or (ii) if any such supervisory authority should exercise its cease
and desist powers to remove the Executive from office.
5. Change in Control Provisions.
5.1 Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
5.11 "Base Amount" shall mean the amount of
the Executive's annual Base Compensation at the rate in effect immediately
prior to the Change in Control.
5.12 "Bonus Amount" shall mean the most
recent annual Short Term Performance Bonus paid or payable to the Executive,
the full fiscal year ended prior to the fiscal year during which a Change in
Control occurred.
5.13 "Change in Control" as used herein shall
mean any of the following events:
(A) When the Company or the Bank
acquires actual knowledge that any person (as such term is used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange
Act")), other than an employee benefit plan established or maintained by the
Company or the Bank, is or becomes the beneficial owner (as defined in Rule
13d-3 of the Exchange Act) directly or indirectly, or record owner of
securities of the Company representing 25% or more of the combined voting
power of the Company's then outstanding securities;
(B) Upon the first purchase of the
Company's common stock pursuant to a tender or exchange offer (other than a
tender or exchange offer made by the Company or an employee benefit plan
established or maintained by the Company or the Bank);
(C) Upon the approval by the
Company's stockholders of (1) a merger or consolidation of the Company with or
into another corporation (other than a merger or consolidation the
definitive agreement for which provides that at least two-thirds of the
directors of the surviving or resulting corporation immediately after the
transaction are Continuing Directors (as
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defined herein)),or (2) a sale or disposition of all or substantially all of the
Company's assets;
(D) If during any period of two
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of either the Company or the Bank (the
"Continuing Directors") cease for any reason to constitute at least a majority
thereof;
(E) Upon a sale of (1) common
stock of the Bank if after such sale any person (as defined above), other than
the Company or an employee benefit plan established or maintained by the Company
or the Bank, owns a majority of the Bank's common stock or (2) all or
substantially all of the Bank's assets; or
(F) Any other agreement, happening
or device which has substantially the same effect on control of the Company or
the Bank as any of the foregoing.
5.2 Upon termination of Executive's employment upon the occurrence of a
Change in Control of the Bank or the Company, or upon Notice of Termination
given by Executive pursuant to paragraph 5.3, as a consequence of a Change in
Control, the Bank or the Company shall pay to Executive an amount equal to 2.0
multiplied by the Executive's Base Amount and Bonus Amount, provided, however,
such payment shall be reduced to the extent necessary to eliminate the
imposition of any taxes under Code Sections 280G and 4999 to such payment, if
the amount of such payment thereby received by the Executive on an after tax
basis would be higher than the amount of such payment the Executive would
otherwise receive on an after tax basis had no reduction occurred. In the event
that the Executive is entitled to any payments under this paragraph 5.2 and has
already received any payments under the provisions of paragraph 4.5, such
payments already received shall be deducted from any payment due under this
paragraph 5.2.
5.3 Notwithstanding any other provision of this Agreement to the
contrary, the Executive may voluntarily terminate her employment under this
Agreement within six (6) months following a Change in Control of the Company or
the Bank, by giving Notice of Termination and the Executive shall thereupon be
entitled to receive the payment described in Paragraph 5.2 of this Agreement,
upon the occurrence of any of the following events, which have not been
consented to in advance by the Executive in writing: (i) the requirement that
the Executive move her personal residence, or perform her principal executive
functions, more than 35 miles from her primary office as of the date of the
Change in Control; (ii) a material reduction in the Executive's Base
Compensation as in effect on the date of the Change in Control or as the same
may be increased from time to time; (iii) the failure by the Bank and the
Company to continue to provide the Executive with compensation and benefits
provided for under this Agreement, as the same may be increased from time to
time, or with benefits substantially similar to those provided to her under any
of the Executive benefit plans in which the Executive now or hereafter becomes a
participant, or the taking of any action by the Company or the Bank which would
directly or indirectly reduce any of such benefits in a material way or deprive
the Executive of any material fringe benefit enjoyed by her at the time of the
Change in Control, provided that such reduction is not part of a Bank-wide
reduction which affects all employees or all similarly situated employees; (iv)
the assignment to the Executive of duties and responsibilities materially
different from those normally associated with her position as referenced in
Paragraph 1 hereof; (v) a failure to elect or re-elect the Executive to the Bank
Board or the Company Board, if the Executive is serving on such Boards on the
date of the Change in Control; or (vi) a material diminution or reduction in the
Executive's responsibilities or authority (including reporting responsibilities)
in connection with her employment with the Bank.
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5.4 Any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with 12 U.S.C ss. 1828(k) and any regulations promulgated thereunder.
6. Trade Secrets; Covenant not-to-compete.
6.1 The Executive shall not, at any time, either during the
Initial Term or any Renewal Term or after the Termination Date, use or disclose
any Trade Secrets of the Bank, except in fulfillment of her duties as the
Executive during her employment, for so long as the pertinent information or
data remain Trade Secrets, whether or not the Trade Secrets are in written or
tangible form. As used herein. "Trade Secrets" shall mean any information,
including but not limited to technical or non-technical data, a formula, a
pattern, a compilation, a program, a device, a method, a technique, a drawing, a
process, financial data, financial plans, product plans, information on
customers, or a list of actual or potential customers or suppliers, which: (i)
derives economic value, actual or potential, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who can
obtain economic value from its disclosure or use, and (ii) is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy.
6.2 Upon termination of Executive's employment hereunder, by the
Bank, the Company or the Executive, for any reason, for a period of eighteen
(18) months after the Termination Date (the "Non-Compete Period"), Executive
agrees that she will not engage in banking activities, in which a chartered
state or national bank may at the time legally be engaged, within an area (the
"Territory") comprised of Fairfax, Arlington, Prince ▇▇▇▇▇▇▇ and Loudoun
Counties, including the incorporated cities situated therein, and the City of
Alexandria in the Commonwealth of Virginia. In the event that the Bank or the
Company opens or acquires a location for its operations in any other
jurisdiction, the county or the District of Columbia in which such location is
opened or acquired shall be added to the Territory. During the Non-Compete
Period, Executive further agrees that she will not directly or indirectly
solicit or provide banking services to customers of the Bank or the Company.
7. Successors; Binding Agreement.
7.1 This Agreement shall be binding upon and shall inure to the
benefit of the Bank, their successors and assigns and the Company and the Bank
shall require any successors and assigns to expressly assume and agree to
perform this Agreement in the same manner and to the same extent that the Bank
would be required to perform if no such succession or assignment had taken
place.
7.2 Neither this Agreement nor any right or interest hereunder
shall be assignable or transferable by the Executive, her beneficiaries or legal
representatives, except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal personal representative.
8. Fees and Expenses. The Bank shall pay legal fees and related
expenses incurred by the Executive as a consequence of the negotiation and
execution of this Agreement not to exceed Two Thousand Dollars ($2,000).
9. Notice. For the purposes of this Agreement, notices and all other
communications provided for in the Agreement (including the Notice of
Termination) shall be in writing and shall be deemed to have been duly given
when personally delivered or sent by certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to the Company:
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Tysons Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Board of Directors
With a copy to: Secretary
If to the Bank:
Tysons National Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Board of Directors
With a copy to: Secretary
If to the Executive:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Any party to this Agreement may change such address for notices by sending to
the parties to this Agreement written notice of a new address for such purpose.
All notices and communications shall be deemed to have been received on the date
of delivery thereof.
10. Settlement of Claims. The Company's and the Bank's obligation to make
the payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Company or the Bank may have against the Executive or others.
The Company or the Bank may, however, withhold from any benefits payable under
this Agreement all federal, state, city, or other taxes as shall be required
pursuant to any law or governmental regulation or ruling.
11. Modification and Waiver. No provisions of this Agreement may be
modified, waived or discharged unless such waiver, modification or discharge is
agreed to in writing and signed by the Executive, the Bank, and the Company. No
waiver by any 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 similar or dissimilar
provisions or conditions at the same or at any prior or subsequent time.
12. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the Commonwealth of Virginia without
giving effect to the conflict of laws principles thereof. Any action brought by
any party to this Agreement shall be brought and maintained in a court of
competent jurisdiction in the Commonwealth of Virginia.
13. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto and supersedes the Prior Agreement and, except for
option and warrant agreements previously entered into between the Executive and
the Company, any and all prior agreements, if any, understandings and
arrangements, oral or written, between the parties hereto with respect to the
subject matter hereof.
15. Headings. The headings of Paragraphs herein are included solely
for convenience of reference and shall not control the meaning or interpretation
of any of the provisions of this Agreement.
10
16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Bank and the Company have caused this Agreement
to be executed and its seal to be affixed hereunto by its officers thereunto
duly authorized, and the Executive has signed and sealed this Agreement,
effective as of the date first above written.
TYSONS NATIONAL BANK
By: (SEAL)
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman of the Board
TYSONS FINANCIAL CORPORATION
By: (SEAL)
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman of the Board
EXECUTIVE
(SEAL)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇