Exhibit 10.12
CONFIDENTIALITY AND CHANGE OF
CONTROL AGREEMENT
THIS CONFIDENTIALITY AND CHANGE OF
CONTROL AGREEMENT, dated as of this
th day of
2010, by and between Botetourt Bankshares, Inc., a Virginia
corporation (the “Company”), the Bank of Botetourt, a
Virginia state bank wholly owned by the Company (the
“Bank”), and
(the “Executive”).
WHEREAS, the Company and the Bank
consider the availability of the Executive’s services to be
important to the management and conduct of the Company’s
business and the Bank’s business and desires to secure the
protection of confidential information in exchange for change of
control benefits and participation in the Bank’s new
executive bonus plan for this year; and
WHEREAS, the Executive is willing to
accept these limitations subject to the conditions set forth in
this Agreement.
In consideration of the mutual
covenants and agreements set forth, the parties agree as
follows:
1. Term . The term of this
Agreement (the “Term”) is effective as of
January 1, 2011 (the “Effective Date”) and will
continue through and including the Executive’s
termination.
2. Benefits .
(a) Plans . During the term
of this Agreement, and in partial consideration for executing this
Agreement, the Executive shall be eligible to participate in any
plans, programs or forms of compensation or benefits that the Bank
provides to the class of employees that includes the Executive,
including, without limitation, and within regulatory guidelines
(i) disability and life insurance, (ii) vacation and sick
leave, (iii) Bank employee health insurance, (iv) defined
benefit pension plan, and (v) retirement plans (including the
Bank’s defined contribution plan and any non-qualified plan
or “rabbi trust”, but only as available); provided
however, a reasonable transition period following any change in
control, merger, statutory share exchange, consolidation,
acquisition or transaction involving the Bank or any of its
subsidiaries shall be permitted in order to make appropriate
adjustments in compliance with this paragraph. In addition, the
Executive will participate in the Bank executive bonus plan for
2011.
(b) Bonus Plan. Executive will
participate in the 2011 Executive Bonus Plan.
3. Confidentiality
.
The Executive recognizes that as an
employee of the Bank or the Company he or she will have access to
and may participate in the origination of non-public, proprietary
and confidential information and that he or she owes a fiduciary
duty to the Company and the Bank. Confidential information may
include, but is not limited to, trade secrets, customer lists and
information, internal corporate planning, methods of marketing and
operation, and other data or information of or concerning the Bank
or its customers that is not generally known to the public or in
the banking industry. The Executive will never use or disclose to
any third party any such confidential information, either directly
or indirectly, without the prior written consent of the Bank or the
Company specifying which information may be disclosed.
4. Employment After a Change in
Control . If a Change in Control of the Company occurs during
the term of this Agreement, and the Executive is employed by the
Bank on the date the Change in Control occurs, then the Bank shall
have the following obligations.
(a) if, within two (2) years
after a Change in Control, the Company or the Bank or
either’s successor
1
(together or either, the
“Successor”) shall terminate the Executive’s
employment without Cause, as defined below, or decline to renew
this Agreement or if the Executive shall terminate employment for
Good Reason, as defined below, the Successor will pay to the
Executive immediately a sum of equal to one and a half
(1.5) times the Executive’s then current annual base
salary.
(b) in any event, if within one
hundred eighty (180) days after a Change of Control, the
Executive terminates his or her employment without Good Reason, the
Successor, within thirty (30) days after the date of
termination of employment, shall pay the Executive a minimum of the
sum of the Executive’s then current base salary for ninety
(90) days.
(c) if, after the one hundred eighty
(180) day period referenced in subparagraph 4(b) above, the
Executive’s employment shall be terminated for Cause or by
the Executive for other than Good Reason within two (2) years
after a Change in Control, this Agreement shall terminate without
any further obligation of the Successor to the Executive other than
to pay to the Executive his or her base salary through thirty
(30) days after the date of termination.
(d) in addition, if the
Executive’s employment is terminated by the Successor without
Cause or the Executive shall terminate employment for Good Reason,
the Successor also shall maintain in full force and effect for the
Executive’s continued benefit, until twelve (12) months
from the date of termination of employment, all health and
insurance plans as required by federal law, and provided that the
Executive’s continued participation is possible under the
general terms and provisions of such plans and programs. If the
Successor reasonably determines that maintaining such health and
insurance plans in full force and effect for the benefit of the
Executive until twelve months from the date of termination of
employment is not feasible, the Successor shall pay the Executive a
lump sum equal to the estimated cost of maintaining such plans for
the Executive for twelve (12) months. In addition, stock
option, restricted stock, and similar agreements with the Executive
evidencing the grant of a stock option or other award under a
Company or Successor stock incentive plan, if applicable, will
provide that the vesting of such stock awards will accelerate and
become immediately exercisable and fully vested as of the date of
termination of employment without Cause or for Good Reason. In the
case of stock options, the Executive will have at least ninety
(90) days after termination of employment, or such longer
period as may be provided for in the separate stock option
agreement, to exercise the option.
(e) Release . Notwithstanding
the provisions above, the Bank shall owe no sums to the Executive
until the Executive has executed a legal release for the benefit of
the Company and the Bank, in a form acceptable to the Bank, which
provides, among other things, that the Executive unconditionally
releases all other claims related to employment that he or she may
have against the Company or the Bank.
5. Change of Control and Other
Terms Defined .
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(a)
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For purposes of
this Agreement, a “Change of Control” shall
mean:
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(i) the acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act’) of beneficial ownership
(within the meaning of Rule 13d-3 under the Exchange Act), of
securit
