Exhibit 10.7
EMPLOYMENT
AGREEMENT
THIS EMPLOYMENT AGREEMENT (this
“Agreement”), dated as of December 31, 2003, among
Mortgage Capital Investors, Inc. (the “Employer”), a
Virginia corporation and direct wholly-owned subsidiary of Union
Bank & Trust Company (“Union Bank”), Union
Bankshares Corporation, a Virginia corporation
(“UBSH”), and Philip E. Buscemi (the
“Executive”).
WITNESSETH
WHEREAS, the Executive has
heretofore been employed and currently is rendering services to the
Employer as President and Chief Executive Officer of the
Employer;
WHEREAS, UBSH and the Employer
consider the continued availability of the Executive’s
services to be important to the management and conduct of the
Employer’s business and desire to secure for themselves the
continued availability of the Executive’s services;
and
WHEREAS, the Executive is willing to
make his services available to the Employer and UBSH on the terms
and subject to the conditions set forth herein.
NOW THEREFORE, in consideration of
the premises and the mutual agreements herein contained, the
parties hereby agree as follows:
1. Employment . The Executive
shall be employed as President and Chief Executive Officer of the
Employer. The Executive shall have such duties and responsibilities
as are commensurate with such positions and shall also render such
other services and duties as may be reasonably assigned to him from
time to time by the Employer and UBSH, consistent with his
positions as President and Chief Executive Officer of the Employer.
The Executive hereby accepts and agrees to such
employment.
2. Term of Employment . The
term of employment shall begin on the date hereof (the
“Commencement Date”) and continue through December 31,
2006; provided that beginning on January 1, 2007 and on each
January 1 st thereafter (each such January
1 st is referred to as the
“Renewal Date”), the term of this Agreement will be
extended automatically for an additional year from such Renewal
Date. This Agreement will not, however, be extended if the Employer
gives written notice to the Executive of its intent not to renew at
least 180 days before the Renewal Date (the initial and any
extended term of this Agreement is referred to as the
“Employment Period”). The last day of such term as so
extended is referred to herein as the “Expiration
Date.”
3. Compensation and Benefits
.
(a) Base Salary . For all
services rendered by the Executive under this Agreement, the
Employer shall pay the Executive an annual base salary of $150,000
(the “Base Salary”), which may be increased each year
by an amount to be determined by the Board of Directors. The
Executive’s salary shall be payable in accordance with
payroll practices of the Employer applicable to officers of the
company.
(b) Incentive Payments
.
(i) Incentive Bonus . The
Employer will pay the Executive with respect to each calendar year
during the term of this Agreement incentive compensation in an
amount equal to four percent (4.0%) of the Employer’s net
income during such calendar year (the “Incentive
Bonus”); provided, however, that the Employer must earn at
least $400,000 in net
income for such year before the
Executive is entitled to receive an Incentive Bonus. The Employer
will cause to be prepared after the end of each calendar year
audited financial statements showing the Employer’s net
income. Subject to Section 4 below, the Executive will be paid the
Incentive Bonus within ninety (90) days after the end of the
calendar year to which the Incentive Bonus relates.
(ii) Commissions . The
Executive shall be paid a commission for each loan that he
originates, which commission shall be paid according to the
Employer’s standard commission schedule in effect at the time
that each such loan is originated. All commissions paid to the
Executive under this Section 3(b) shall be paid at such intervals
as the Employer shall determine.
(iii) Definition of Net
Income . For purposes of this Agreement, “net
income” shall mean the Employer’s aggregate earnings
net of losses from operations after deduction of all appropriate
expenses, charges and reserves, including the Incentive Bonus and
federal and state income taxes. Net income will be determined by
Union Bank in accordance with generally accepted accounting
principles (“GAAP”) consistently applied and as
included in the financial statements prepared by the CPA firm
designated by the Employer; provided, however, that in determining
such net income:
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(A)
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net income
shall be computed without regard to “extraordinary
items” of gain or loss as that term shall be defined by
GAAP;
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(B)
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net income
shall not include any gains, losses or profits realized from the
sale of any assets other than in the ordinary course of business;
and
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(C)
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net income will
include a deduction for (1) the allocation of reasonable and
appropriately documented direct overhead expenses, (2) payment of
the commissions pursuant to Section 3(b)(ii), and (3) interest
charged on any loans or advances made by Union Bank to the Employer
in connection with its business operations at a rate equal to the
London Interbank Rate (LIBOR).
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(c) Benefits . During the
term of the Agreement, the Executive shall be entitled to
participate in and receive the benefits of any pension or other
retirement benefit plan, profit sharing, stock option, employee
stock ownership, or other plans, benefits and privileges given to
executives of the Employer, to the extent commensurate with his
then duties and responsibilities as fixed by the Board of Directors
of the Employer. The Employer reserves the right to modify, add or
eliminate benefits for its employees as it deems
appropriate.
(d) Business Expenses . The
Employer shall reimburse the Executive or otherwise provide for or
pay for all reasonable expenses incurred by the Executive in
furtherance of, or in connection with the business of the Employer,
including, but not by way of limitation, travel expenses, car
allowance of not less than $800 per month, and memberships in
professional organizations, subject to such reasonable
documentation and other limitations as may be established by the
Board of Directors of the Employer.
4. Termination and Termination
Benefits .
(a) Termination for Cause .
The Executive’s employment may be terminated for Cause at any
time without further liability on the part of the Employer. Only
the following shall constitute “Cause” for such
termination:
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(i) continued failure by the
Executive for reasons other than disability to follow reasonable
instructions or policies of the Board of Directors of the Employer
after being advised in writing of such failure, including specific
actions or inaction on the part of the Executive and the particular
instruction or policy involved, and being given a reasonable
opportunity and period (as determined by the Board of Directors of
the Employer) to remedy such failure;
(ii) gross incompetence, gross
negligence, willful misconduct in office or breach of a material
fiduciary duty owed to the Employer or any Affiliate (as defined in
Section 6(b));
(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 Employer
or any Affiliate;
(iv) any breach by the Executive of
a material term of this Agreement, 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 Employer;
(v) dishonesty of the Executive with
respect to the Employer or any Affiliate; or
(vi) the willful engaging by the
Executive in conduct that is demonstrably and materially injurious
to the Employer or any Affiliate, monetarily or otherwise, or any
conduct deemed by the Board of Directors of the Employer to be
immoral or which may bring embarrassment or disrepute to the
Employer or any Affiliate.
(b) Termination as a Consequence
of Death or Disability . If the Executive dies or becomes
disabled during the Employment Period, the Employer will pay the
Executive or his estate his Base Salary through the end of the
calendar month in which his death or disability occurs. In
addition, the Executive and/or his estate shall be entitled to the
following:
(i) the Employer shall pay the
Executive or his estate commissions for any loans originated by the
Executive prior to his death or disability, regardless of their
closing date, together with information indicating the manner and
basis upon which such commissions were calculated; and
(ii) the Employer shall pay the
Executive or his estate any bonuses that would have been paid to
the Executive for a period of six (6) months following his death or
disability, together with information indicating the manner and
basis upon which such bonuses were calculated.
For purposes of this Section 4, the Executive is
“disabled” if he is unable to perform the essential
functions of his duties and responsibilities hereunder for 120
consecutive days or 180 days during any twelve month period (as
determined by the opinion of an independent physician selected by
the Board of Directors of the Employer). The Executive must submit
to a reasonable number of examinations by the medical doctor making
the determination of disability, and the Executive hereby
authorizes the disclosure and release to the Employer of such
determination and all supporting medical records.
(c) Termination by the
Executive . The Executive may terminate his employment
hereunder with or without Good Reason (as defined below) by written
notice to the Board of Directors of the Employer effective thirty
(30) days after receipt of such notice by the Board of Directors.
In the event the Executive terminates his employment hereunder for
Good Reason, the Executive shall be entitled to the
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benefits specified in Section 4(d)
and the Executive shall not be required to render any further
services to the Employer. Upon termination of employment by the
Executive without Good Reason, the Executive shall be entitled to
no further compensation or benefits under this Agreement.
“Good Reason” shall be: (i) the failure by the Employer
to comply with the provisions of Section 3 or material breach by
the Employer of any other material provision of this Agreement,
which failure or breach shall continue for more than sixty (60)
days after the date on which the Board of Directors of the Employer
receives such written notice; or (ii) the assignment of the
Executive without his written 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.
(d) Certain Termination
Benefits . In the event of termination by the Employer without
Cause, or by the Executive with Good Reason, the Executive shall be
entitled to the following benefits:
(i) For the period subsequent to the
date of termination until the Expiration Date, the Employer shall
continue to pay the Executive his Base Salary 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 Executive had his
employment not been terminated, unless the Employer elects to make
a lump sum severance payment in an equivalent amount within thirty
(30) days of the date of termination.
(ii) Notwithstanding the foregoing,
in the event of termination by the Employer without Cause or by the
Executive with Good Reason after a Change of Control (as defined in
Section 15) of UBSH or after the Employer ceases to be a direct or
indirect wholly-owned subsidiary of UBSH, the Executive shall
receive a lump sum severance payment within thirty (30) days of the
date of termination in an amount equal to the greater of (A)
his then current Base Salary for the period subsequent to the date
of termination until the Expiration Date, or (B) his then current
Base Salary for two years.
(iii) The Employer shall pay the
Executive commissions for any loans originated by the Executive
prior to the date of termination, regardless of their closing date,
together with information indicating the manner and basis upon
which such commissions were calculated.
(iv) For the period subsequent to
the date of termination until the Expiration Date, the Employer
shall pay the Executive for each calendar year beginning for the
year during which his termination occurs and continuing through the
Expiration Date (which payment shall be prorated for the year in
which the Expiration Date occurs if less than a full year)
a