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Exhibit 10.26
C&F FINANCIAL CORPORATION
Capital Purchase Program Agreement
Regarding Executive Compensation
Limitations
Omnibus Amendment of All Compensation Plans
This Agreement is adopted as of January 9, 2009 by C&F
Financial Corporation, a Virginia corporation (the " Company
"), for itself and all of its subsidiaries treated as a single
employer with the Company under 31 C.F.R. Section 30.1(b), in
connection with the Company’s participation in the Troubled
Asset Relief Program Capital Purchase Program (the " CPP ")
created by the U.S. Department of the Treasury (the " Treasury
Department ") pursuant to authority granted under the Emergency
Economic Stabilization Act of 2008 (the " EESA "), pursuant
to which program the Company will issue to the Treasury Department
shares of the Company’s senior preferred stock and a warrant
to purchase shares of common stock of the Company, in accordance
with the terms and conditions in a Letter Agreement, including as
Exhibit A thereto the Securities Purchase Agreement –
Standard Terms, between the Company and Treasury (the " CPP
Transaction "), and for purposes of complying with the
requirements of Section 111(b) of the EESA and the CPP with
respect to executive compensation of senior executives of the
Company, in accordance with the guidance and regulations issued by
the Treasury Department with respect to the CPP (the " CPP
Requirements ");
NOW, THEREFORE, in consideration of the premises the Company,
intending to be legally bound, hereby agrees as follows:
1. Effectiveness . This Agreement is contingent
upon consummation of, and will become effective on the date (the "
Effective Date "), the CPP Transaction is consummated. If
the CPP Transaction is not consummated, this Agreement shall have
no legal effect.
2. Term . This Agreement shall remain in effect
for as long as the Treasury Department holds any equity or debt of
the Company that was acquired pursuant to the CPP Transaction (the
" Term "). This Agreement shall terminate on the first date
the Treasury Department no longer holds any equity or debt of the
Company that was acquired pursuant to the CPP Transaction.
3. Application . This Agreement modifies and
supersedes all compensation, benefit or other plans, programs,
contracts, arrangements, agreements or understandings with respect
to any senior executive officer (an " SEO ") for purposes of
the CPP Requirements which provide payment(s) and/or benefit(s)
which are compensatory in nature for services rendered as an
employee of the Company and/or any of its subsidiaries, whether
currently existing or adopted or entered into after the date of
this Agreement, and whether written or unwritten (collectively, the
" Compensation Plans "), but only to the extent required by
the CPP Requirements.
4. Clawback . The Company hereby
declares and agrees that every Compensation Plan is amended to
require that each and every payment of any bonus or incentive
compensation, as defined by the CPP Requirements, under any
Compensation Plan made to an SEO during the Term of this Agreement
shall be subject to recovery by the Company in the event such
payment was based on materially inaccurate financial statements or
any other materially inaccurate performance metric criteria as
interpreted and applied consistent with the CPP
Requirements.
5. Golden Parachute Limitation . The Company
hereby declares and agrees that every Compensation Plan is amended,
notwithstanding any provision or term of any such Compensation Plan
to the contrary, so that during the Term of this Agreement no SEO
will be entitled to receive any parachute payment in excess of the
amount that would be permitted by the CPP Requirements and
Section 280G(e) of the Internal Revenue Code of 1986, as
amended (" Section 280G(e) "), determined as if
Section 280G(e) applies to the Company.
6. Agreement of SEOs . The Company shall use it
best efforts, where necessary or appropriate, to obtain the written
consent of its current and prospective SEOs in the form attached
hereto (the " Consent ").
7. Amendments . Subject to any applicable
limitations under the CPP, this Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, by the Board of Directors of the
Company or the Compensation Committee of the Board of Directors of
the Company (or the delegate thereof) only by written
instrument.
8. Governing Law . This Agreement shall
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