Exhibit 10.09
AMENDED AND RESTATED
EMPLOYMENT
AGREEMENT
This Employment Agreement (this
“Agreement”) is made as of May 1, 2006, by and
between Union Bankshares Corporation, a Virginia corporation (the
“Company”), and D. Anthony Peay (the
“Officer”) and is amended as of December 31, 2008,
in order to comply with applicable provisions of Section 409A
of the Internal Revenue Code of 1986, as amended.
The parties, intending to be legally
bound, agree as follows:
1. Employment and Acceptance
. The Officer shall be employed as Executive Vice President and
Chief Financial Officer of the Company. The Officer shall have the
duties and responsibilities that are commensurate with his position
and shall also render such other services and duties as may be
reasonably assigned to him from time to time by the Company,
consistent with his positions as Executive Vice President and Chief
Financial Officer of the Company. The Officer hereby accepts and
agrees to such employment and agrees to carry out his duties and
responsibilities to the best of his ability in a competent,
efficient and businesslike manner.
2. Term of Employment . This
Agreement is effective May 1, 2006 (the “Commencement
Date”) and will end on the second anniversary of the
Commencement Date, unless sooner terminated as provided herein (the
“Employment Period”). Beginning on the day following
the Commencement Date, and on each day thereafter, the Employment
Period shall automatically be extended an additional day, unless
prior to such extension the Company gives written notice to the
Officer that the Employment Period will not thereafter be extended.
The last day of the Employment Period, as extended from time to
time, is sometimes referred to as the “Expiration
Date.”
3. Compensation and Benefits
.
(a) Base Salary . The Company
shall pay the Officer an annual base salary of $185,000 (the
“Base Salary”), which will be payable in accordance
with the payroll practices of the Company applicable to all
officers. The Base Salary will be reviewed annually by the Board of
Directors and may be adjusted upward or downward in the sole
discretion of the Board of Directors. In no event, however, will
the Base Salary be less than $185,000.
(b) Annual Bonus . The
Officer may be entitled to receive annual cash bonus payments in
such amounts as may be determined in accordance with the terms and
conditions of the applicable management incentive plan as may be
adopted on an annual basis by the Board of Directors of the
Company.
(c) Stock Compensation . The
Officer may be entitled to receive stock awards under the
Company’s 2003 Stock Incentive Plan, or any successor plan,
in such amounts and
subject to such terms and conditions as
determined under the applicable management incentive plan as may be
adopted on an annual basis by the Board of Directors of the
Company.
(d) Benefits . The Officer
will be entitled to participate in and receive the benefits of any
pension or other retirement benefit plan, life insurance, profit
sharing, employee stock ownership, and other plans, benefits and
privileges of the Company that may be in effect from time to time,
to the extent the Officer is eligible under the terms of those
plans and programs, provided, however, that the Officer and Company
agree that Officer shall not be eligible to receive or claim any
benefit under the Union Bankshares Corporation Severance Pay Plan
effective as of October 1, 1999, as amended.
(e) Business Expenses . The
Company will reimburse Officer or otherwise provide for or pay for
all reasonable expenses incurred by Officer in furtherance of, or
in connection with, the business of the Company, including, but not
by way of limitation, travel expenses, car allowance, and
memberships in professional organizations, subject to such
reasonable documentation and other limitations as may be
established by the Board of Directors of the Company.
(f) Vacation . The Officer
will be entitled to five weeks of vacation per year after the
Officer completes twenty years of employment with the Company, to
be taken at such times and intervals as shall be determined by the
Officer with the approval of the Company, which approval shall not
be unreasonably withheld.
(g) Deferred Compensation
Benefits . The Company may enter into a deferred compensation
arrangement with the Officer to provide for certain supplemental
nonqualified cash benefits in such amounts and on such terms and
conditions as the parties may agree.
4. Termination and Termination
Benefits . Notwithstanding the provisions of Section 2,
the Officer’s employment hereunder shall terminate under the
following circumstances and shall be subject to the following
provisions:
(a) Death . If the Officer
dies while employed by the Company, the Company will continue to
pay an amount equal to the Officer’s then current Base Salary
to the Officer’s beneficiary designated in writing to the
Company prior to his death (or to his estate, if he fails to make
such designation) for six months after the Officer’s death,
with such payments to be made on the same periodic dates as salary
payments would have been made to the Officer had he not
died.
(b) Disability . The
Officer’s employment hereunder may be terminated at any time
because of the Officer’s inability to perform his duties with
the Company on a full time basis for 180 consecutive days or a
total of at least 240 days in any twelve month period as a result
of the Officer’s incapacity due to physical or mental illness
as determined pursuant to the Company’s long term disability
policy; provided , however , that the Company shall
provide continued medical insurance in the Company’s health
plan for the benefit of the Officer for a period of twelve months
after the date of such termination.
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(c) Termination by the Company
for Cause . The Officer’s employment may be terminated at
any time without further liability on the part of the Company
effective immediately for Cause by written notice to the Officer
setting forth in reasonable detail the nature of such Cause. Only
the following shall constitute “Cause” for such
termination:
(i) continued failure by the Officer
for reasons other than disability to follow reasonable instructions
or policies of the Board of Directors of the Company after being
advised in writing of such failure, including specific actions or
inaction on the part of the Officer and the particular instruction
or policy involved, and being given a reasonable opportunity and
period (as determined by the Board of Directors of the Company) to
remedy such failure;
(ii) gross incompetence, gross
negligence, willful misconduct in office or breach of a material
fiduciary duty owed to the Company or any subsidiary or affiliate
thereof;
(iii) conviction of a felony or a
crime of moral turpitude (or a plea of nolo contendere thereto) or
commission of an act of embezzlement or fraud against the Company
or any subsidiary or affiliate thereof;
(iv) any breach by the Officer of a
material term of this Agreement or violation in any material
respect of any code or standard of conduct generally applicable to
officers of the Company, including without limitation material
failure to perform a substantial portion of his duties and
responsibilities hereunder as established from time to time by the
Board of Directors of the Company, after being advised in writing
of such breach, violation, or failure and being given a reasonable
opportunity and period (as determined by the Board of Directors of
the Company) to remedy such breach, violation, or
failure;
(v) dishonesty of the Officer with
respect to the Company or any subsidiary or affiliate thereof;
or
(vi) the willful engaging by the
Officer in conduct that is demonstrably and materially injurious to
the Company, monetarily or otherwise, or any conduct deemed by the
Board of Directors of the Company to be immoral or which may bring
embarrassment or disrepute to the Company, its good name or
status.
(d) Termination by the Company
without Cause . The Officer’s employment may be
terminated without Cause effective immediately by written notice to
the Officer. In the event of termination without Cause, the Officer
shall be entitled to the benefits specified in
Section 4(f).
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(e) Termination by the
Officer . The Officer may terminate his employment hereunder
with or without Good Reason (as defined below) by written notice to
the Board of Directors of the Company effective thirty days after
receipt of such notice by the Board of Directors. In the event the
Officer terminates his employment hereunder for Good Reason, the
Officer shall be entitled to the benefits specified in
Section 4(f). The Officer shall not be required to render any
further services to the Company. Upon termination of employment by
the Officer without Good Reason, the Officer shall be entitled to
no further compensation or benefits under this Agreement.
“Good Reason” shall be (i) the failure by the
Company to comply with the provisions of Section 3 or material
breach by the Company of any other provision of this Agreement,
which failure or breach shall continue for more than thirty days
after the date on which the Board of Directors of the Company
receives notice of such failure or breach from the Officer,
(ii) the assignment of the Officer without his consent to a
position, responsibilities, or duties of a materially lesser status
or degree of responsibility than his position, responsibilities, or
duties at the Commencement Date other than as a direct result of
the change in control of the Company (which is otherwise addressed
herein), or (iii) the requirement by the Company that the
Officer be based at any office that is greater than fifty miles
from where the Officer’s office is located at the
Commencement Date.
(f) Certain Termination
Benefits . In the event of termination by the Company without
Cause and other than for death or disability, or by the Officer
with Good Reason, the Officer shall be entitled to the following
benefits, subject to the provisions of
Section 5(c)):
(i) Subject to subsection
(iii) below, for a two-year period immediately following the
date of termination, the Company shall continue to pay the Officer
his Base Salary (not including any bonus other than any unpaid
bonus relating to a fiscal year of the Company completed prior to
the date of termination) at the rate in effect on the date of
termination, such payments to be made on the same periodic dates as
salary payments would have been made to the Officer had he not been
terminated, provided that if the Officer is a Key Employee (as
defined in subsection (vi)) on the date of termination, he shall
not receive any payments until the first day of the seventh month
following the date of termination and the first payment shall
include six months of payments and each remaining payment shall
equal the same amount the Officer would have received while
employed. The Company and the Officer will use their best efforts
to accelerate the vesting of any nonvested benefits of the Officer
under any employee stock-bas
