EXHIBIT 3.1
MAINSTREET BANCSHARES, INC.
BYLAWS
(As Amended and Restated on November 16, 2022)
ARTICLE I
Meetings of Shareholders
Section 1. Places of Meetings. All meetings of the shareholders shall be held at such place, either within or without the Commonwealth of Virginia, as may, from time to time, be fixed by the Board of Directors. The Board of Directors may also hold any meeting of shareholders by means of remote communication without meeting in a physical place to the extent the Board of Directors authorizes participation for any class or series of shares and permitted by Virginia law.
Section 2. Annual Meetings. The annual meeting of the shareholders, for the election of directors and transaction of such other business as may properly come before the meeting, shall be held on such date and at such time as the Board of Directors of the Corporation may designate.
Section 3. Special Meetings. Except as otherwise specifically provided by law, special meetings of shareholders for any purpose or purposes may only be called by the Chief Executive Officer, President, Chairman of the Board or by a majority of the Board of Directors. At a special meeting, no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting.
Section 4. Notice of Meetings. Except as otherwise required by law or these Bylaws, written or printed notice stating the place, day and hour of every meeting of the shareholders and, in case of a special meeting, the purpose or purposes for which the meeting is called, shall be given by mail, postage prepaid, or by any other means permitted by applicable law, not less than 10 nor more than 60 calendar days before the date of the meeting to each shareholder of record entitled to vote at such meeting, at his or her address appearing in the share transfer books of the Corporation or such electronic mail address, facsimile number or other form of address provided by the shareholder for receiving notice.
Section 5. Quorum. Except as otherwise provided by law, a quorum for the transaction of business at any annual or special meeting of shareholders shall consist of shareholders representing, either in person or by proxy, one-third of the outstanding shares of capital stock of the Corporation entitled to vote at such meeting. If less than a quorum shall be in attendance, in person or by proxy, at the time for which a meeting shall have been called, the meeting may be adjourned by a majority of the shareholders in attendance, in person or by proxy, without notice other than by announcement at the meeting, until a quorum is present. Once a share is represented as present at a meeting, either in person or by proxy, it is deemed present for quorum purposes for the remainder of the meeting including adjournment of that meeting unless a new record date is set for adjournment of that meeting.
Section 6. Adjournments. Any meeting of shareholders, annual or special, may be adjourned from time to time to reconvene at the same or some other place, and notice need not be given of any such adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Corporation may transact any business which might have been transacted at the original meeting. If the adjournment is for more than 120 calendar days, or if after the adjournment a new record date is fixed for the adjourned meeting, notice of the adjourned meeting shall be given to each shareholder of record as of the new record date entitled to vote at the meeting.
Section 7. Voting. At any meeting of the shareholders each shareholder of a class entitled to vote on the matters coming before the meeting shall have one vote, in person or by proxy, for each such share standing in his or her name on the books of the Corporation at the record date for such meeting.
Section 8. Record Date. The transfer books for shares of stock of the Corporation may be closed by order of the Board of Directors for a period not exceeding 70 calendar days immediately preceding any shareholders’ meeting for the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or entitled to receive payment of any dividend or in order to make a determination of shareholders for any other proper purpose. In lieu of closing the stock transfer books, the Board of Directors may fix in advance a date as the record date for any such determination of shareholders, such date to be not more than 70 calendar days preceding the date of the meeting, dividend payment or action requiring such determination of shareholders.
Section 9. Inspector. The Board of Directors or the officer presiding over a meeting of shareholders shall appoint an inspector for a meeting of shareholders. The inspector will open and close the polls, will receive and take charge of proxies and ballots, and will decide all questions as to the qualifications of voters, validity of proxies and ballots, and the number of votes properly cast.
Section 10. Conduct of Meetings. The Chief Executive Officer shall preside over all meetings of shareholders. If such officer is not present, or if there is no Chief Executive Officer, the President shall preside over meetings of shareholders. If such officer is not present, or if there is no President, then either the Secretary or Treasurer shall preside over meetings of shareholders. If none of such officers are present, the Board of Directors shall select a presiding officer for the meeting. The Secretary of the Corporation shall act as secretary of all meetings of shareholders if the Secretary is present. If the Secretary is not present, the presiding officer of the meeting shall appoint a secretary of the meeting.
Section 11. Consent. Any action that may be taken by the shareholders in a meeting may be taken by unanimous written consent of all shareholders entitled to vote on the action.
Section 12. Notice of Shareholder’s Proposals and Nominations. Except as otherwise provided by law, at any annual or special meeting of shareholders only such business shall be conducted as shall have been properly brought before the meeting in accordance with this Section 12.
(a) Annual Meetings of Shareholders.
(i) Nominations of persons for election to the Board of Directors of the Corporation and the proposal of business other than nominations to be considered by the shareholders shall be properly brought before the meeting only: (A) if specified in the written notice of the meeting (or any supplement thereto) given to shareholders of record on the record date for such meeting by or at the direction of the Board of Directors (or any duly authorized committee thereof), (B) if brought before the meeting at the direction of the Board of Directors (or any duly authorized committee thereof) or the officer presiding over the meeting, or (C) if brought by a shareholder of the Corporation, or a duly authorized proxy for a shareholder, who, at the time the notice provided for in this Section 12(a) is delivered to the Secretary of the Corporation, is entitled to vote at the meeting and complies with the notice procedures set forth in this Section 12(a). The nomination by a shareholder of any person for election as a director, other than the persons nominated by the Board of Directors or any duly authorized committee thereof, shall be considered business other than business specified in clauses (A) and (B) of this Section 12(a)(i) and shall be permitted only upon compliance with the requirements of clause (C) of this Section 12(a)(i). The foregoing clause (C) shall be the exclusive means for a shareholder to make nominations or propose other business at an annual meeting of shareholders, other than a proposal included in the Corporation’s proxy statement pursuant to and in compliance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(ii) For director nominations or other business to be properly brought before an annual meeting by a shareholder pursuant to clause (C) of Section 12(a)(i) above: (1) the shareholder must be a shareholder of record on each of the following dates: when notice is timely delivered in writing to the Secretary of the Corporation, on the record date for the meeting and at the time of the meeting and any adjournment thereof; (2) the shareholder must submit information required by these Bylaws and any such proposed business other than the nominations of persons for election to the Board of Directors must constitute a proper matter for shareholder consideration and action; and (3) the shareholder must have complied in all respects with the requirements of Regulation 14A under the Exchange Act, including, without limitation, the requirements of Rule 14a-19 (as such rules and regulations may be amended from time to time by the Securities and Exchange Commission (“SEC”), including any SEC staff interpretations relating thereto) . The Corporation shall disregard the solicitation of proxies that fails to fully comply with the requirements of these Bylaws and federal and state securities laws and regulations, including Rule 14a-19. The Board of Directors, an executive officer designated thereby or legal counsel shall determine whether the shareholder has satisfied these requirements.
(iii) To be timely and proper, a shareholder’s written notice shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 120th calendar day prior to the first anniversary of the preceding year’s annual meeting date; provided, however, that in the event the date of the annual meeting is more than 30 calendar days before or after such anniversary date, or if no annual meeting was held in the preceding year, written notice by the shareholder will be considered timely if it is delivered by the close of business on the 10th calendar day following the day on which notice of the date of the annual meeting was first mailed or public announcement of the date of the annual meeting was first made by the Corporation, whichever occurs first. In no event shall an adjournment or postponement of an annual meeting for which notice of the meeting has already been given to shareholders or a public announcement of the meeting date has already been made commence a new time period (or extend any time period) for the giving of a shareholder’s written notice pursuant to this Section 12(a). Any director nomination shall be promptly updated or supplemented at times and in forms required by these Bylaws and applicable SEC requirements. The number of nominees a shareholder may nominate for election at the annual meeting (or in the case of a shareholder giving notice on behalf of a beneficial owner, the number of nominees a shareholder may nominate for election at the annual meeting on behalf of the beneficial owner) shall not exceed the number of directors to be elected at the annual meeting. Such number may be increased in the event the Board of Directors increases its number of nominees. A shareholder shall not be entitled to make additional or substitute nominations following expiration of the time periods set forth herein unless the Board of Directors increases the number of nominees or a shareholder’s nominee withdraws due to circumstances that are reasonably beyond the nominee’s control.
(iv) With respect to each matter and nomination such shareholder proposes to bring before the annual meeting, such shareholder’s notice shall set forth: (1) a brief description of the business desired to be brought before the annual meeting, including the text of the proposal or business, and the reasons for conducting such business at the annual meeting; and (2) as to the shareholder giving such notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made, (A) the name and address of such shareholder, as they appear on the Corporation’s stock transfer books, and of such beneficial owner, (B) the class or series and number of shares of capital stock and depositary shares of the Corporation that are owned beneficially and of record by such shareholder and such beneficial owner, (C) a description of all agreements, arrangements or understandings between such shareholder or beneficial owner and any other person or persons (including their names), regardless of whether such agreement, arrangement or understanding relates to the Corporation, any material interest of such shareholder or beneficial owner, if any, in such business, and a representation that such shareholder is not acting in concert with any other person or persons, (D) any plans or proposals on the part of such shareholder or such beneficial owner to nominate directors at any other company with a class of equity securities registered under Section 12 of the Exchange Act within the next 12 months, (E) any proposals or nominations submitted on behalf of such shareholder or such beneficial owner to nominate directors for election at any other company with a class of equity securities registered under Section 12 of the Exchange Act within the past 36 months (whether or not such proposal or nomination was publicly disclosed), (F) with respect to each shareholder, beneficial owner, person with whom such shareholder or beneficial owner has any agreement, arrangement or understanding or are acting in concert, the information that would be disclosed pursuant to Item 5(b) of Schedule 14A under the Exchange Act assuming each such person is deemed a “participant” as defined in paragraphs (a)(ii)—(vi) of Instruction 3 to Item 4 of Schedule 14A, (G) a representation that such shareholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to propose such nomination or business, (H) an acknowledgment that, if such shareholder, or a qualified representative thereof, fails to appear at such meeting (including virtually in the case of a meeting conducted by means of remote communication) and present a proposed nominee or business, as applicable, the Corporation need not present the proposed nominee for election or proposed business for approval, notwithstanding the Corporation’s receipt of proxies in respect of a vote on such matters, and (I) such other information as may be reasonably requested by the Corporation to facilitate disclosure to shareholders of all material facts that, in the reasonable discretion of the Corporation, are relevant for shareholders to make an informed decision.
(v) A person shall be deemed to be “acting in concert” with another person if such person knowingly acts during the prior two years (whether or not pursuant to an express agreement, arrangement or understanding) in concert with, or towards a common goal relating to the Corporation in parallel with, such other person where (A) each person is conscious of the other person’s conduct or intent and (B) at least one additional factor suggests that such persons intend to act in concert or in parallel, which such additional factors may include, without limitation, exchanging information (whether publicly or privately), attending meetings, conducting discussions or making or soliciting invitations to act in concert or in parallel; provided, however, that a person shall not be deemed to be acting in concert with any other person solely as a result of the solicitation of proxies after the filing of a definitive proxy statement under Section 14(a) of the Exchange Act. A person acting in concert with another person shall be deemed to be acting in concert with any third party who is also acting in concert with such other person.
(vi) With respect to such shareholder’s nomination of a person as a director, a brief description of the background and credentials of such nominee, including (A) the name, age, business address and residence address of such nominee, (B) the principal occupation or employment of such nominee, (C) the class or series and number of shares of capital stock and/or the number of depositary shares of the Corporation that are owned beneficially and of record by such nominee, (D) any other information relating to such nominee that would be required to be disclosed in a solicitation of proxies for election of directors pursuant to Regulation 14A under the Exchange Act, and (E) such nominee’s written consent to being named in a proxy statement as a nominee and to serving as a director if elected. The Corporation may require any proposed nominee for director to furnish, within 10 days of receipt by the proposed nominee of such request, such other information, including a Director/Nominee Questionnaire with respect to the background and qualifications of such nominee, as the Corporation may reasonably request to confirm the eligibility of such proposed nominee to serve as a director.
(vii) With respect to any director nomination, such shareholder’s notice shall also provide a written undertaking and agreement by the shareholder giving the notice or, if the notice is given on behalf of a beneficial owner on whose behalf the nomination is made, by such beneficial owner, that (A) such shareholder or beneficial owner will deliver to holders of shares representing at least 67% of the voting power of the stock entitled to vote generally in the election of directors either (x) at least 20 calendar days before the annual meeting, a copy of its definitive proxy statement for the solicitation of proxies for its director candidates, or (y) at least 40 calendar days before the annual meeting a Notice of Internet Availability of Proxy Materials that would satisfy the requirements of Rule 14a-16(d) under the Exchange Act; and (B) that such shareholder will update the Corporation in writing promptly if the shareholder fails to satisfy the requirements of Rule 14a-19 under the Exchange Act for any reason including a failure to file a definitive proxy statement with the SEC or a decision by the shareholder not to solicit the requisite 67% of the voting power entitled to vote in the election of directors. If (B) is not applicable, such shareholder shall prior to the meeting provide the Corporation a certificate or other evidence that the requirements of Rule 14a-19 have been fully satisfied.
(viii) With respect to any business other than a director nomination proposed to be brought before an annual or special meeting by a shareholder pursuant to clause (C) of Section 12(a)(i) above, such shareholder’s notice shall also provide a representation whether the shareholder or the beneficial owner, if any, intends or is part of a group that intends to deliver a definitive proxy statement to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal.
(b) Special Meetings of Shareholders. Only such business shall be conducted at a special meeting of shareholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board of Directors may be made at a special meeting of shareholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has determined that directors shall be elected at such meeting, by any shareholder of the Corporation who is a shareholder of record at the time the notice provided for in this section is delivered to the Secretary of the Corporation, who is entitled to vote at the meeting and on such election and who complies with the notice procedures set forth in this section. In the event the Corporation calls a special meeting of shareholders for the purpose of electing one or more directors to the Board of Directors, any such shareholder entitled to vote in such election of directors may nominate a person or persons, as the case may be, for election to such position(s) as specified in the Corporation’s notice of meeting, if (A) the shareholder delivers all of the information required to be delivered under Section 12(a) to the Secretary at the principal executive offices of the Corporation not later than the close of business on the later of the 90th calendar day prior to such special meeting or the 10th calendar day following the day on which public announcement (as defined above) is first made of the date of the special meeting and of the nominees proposed by the Board of Directors to be elected at such meeting, and (B) the shareholder and any beneficial owner comply with all notice and other requirements, including compliance with Rule 14a-19 under the Exchange Act, set forth under Section 12(a). In no event shall the public announcement of an adjournment or postponement of a special meeting commence a new time period (or extend any time period) for giving of a shareholder’s notice as described above.
(c) General. Only such persons who are nominated in accordance with the procedures set forth in this Section 12 shall be eligible at an annual or special meeting of shareholders of the Corporation to be elected as directors and only such business shall be conducted at a meeting of shareholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 12. Except as otherwise provided by law, the presiding officer of the meeting shall have the power and duty (A) to determine whether a nomination or any business proposed to be brought before the meeting was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 12 and (B) to declare that such nomination shall be disregarded or that such proposed business shall not be transacted. If the shareholder (or a qualified representative of the shareholder) does not appear at the annual or special meeting of shareholders of the Corporation and present a nomination or item of business (whether pursuant to the requirements of these Bylaws or in accordance with Rule 14a-8 under the Exchange Act), such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. To be considered a “qualified representative” of a shareholder, a person must be a duly authorized officer, manager or partner of such shareholder or must be authorized in writing (or a reliable reproduction of the writing) delivered to the Corporation not fewer than five days prior to the meeting stating that such person is authorized as proxy for such shareholder at the meeting.
Section 13. Meetings of Shareholders by Remote Communication
(a) Notwithstanding anything in these Bylaws to the contrary, the Board of Directors of the Corporation may determine that any meeting of shareholders shall not be held at any place and shall instead be held solely by means of remote communication in conformity with subsection B of Section 13.1-660.2 of the Virginia Stock Corporation Act, as amended, through which the shareholders may participate remotely in the meeting, if notice of the meeting is given to every holder of shares entitled to vote required at such meeting, and if the number of shares held by the shareholders or proxy holders participating remotely in the meeting would be sufficient to constitute a quorum at the meeting.
(b) Shareholders and proxy holders participating by means of remote communication shall be deemed present at the meeting for purposes of determining the presence of a quorum at such meeting and may vote at such meeting if all of the requirements of subsection B of Section 13.1-660.2 of the Virginia Stock Corporation Act, as amended, are met as determined by the inspector of election appointed by the Board of Directors with respect to such meeting or any adjournments thereof;
(c) In any meeting of shareholders held solely by means of remote communication as provided herein:
(1) the Corporation shall implement reasonable measures to verify that each person participating remotely as a shareholder is a shareholder or a shareholder’s proxy; and
(2) the Corporation shall implement reasonable measures to provide each shareholder or proxy holder a reasonable opportunity to participate by means of remote communication in the meeting, including an opportunity to:
(i) read or hear the proceedings of the meeting, substantially concurrently with such proceedings; and
(ii) to vote on matters submitted to shareholders at the meeting;
(d) Notwithstanding anything herein to the contrary, the Board of Directors may determine that a meeting of shareholders will not be held at any specified place, but instead may be held solely by means of remote communication;
(e) If a meeting of shareholders by remote communications is authorized by the Board of Directors, the Board of Directors may adopt guidelines and procedures governing the conduct of such meeting, including providing for the participation and voting by shareholders and proxy holders by means of remote communication; and
(f) In the event any shareholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of the vote or other action shall be maintained by the Secretary of the Corporation.
ARTICLE II
Directors
Section 1. General Powers. The property, affairs and business of the Corporation shall be managed under the direction of the Board of Directors, and except as otherwise expressly provided by law, the Articles of Incorporation or these Bylaws, all of the powers of the Corporation shall be vested in such Board.
Section 2. Number of Directors. The Board of Directors shall consist of no fewer than 5 and no more than 15 persons, with the exact number of directors to be determined from time to time by resolution adopted by the affirmative vote of a majority of the directors then in office or by the Board’s approval of a specific number of director nominees for the annual meeting of shareholders combined with the number of directors continuing in office after such meeting.
Section 3. Qualifications of Directors. To be eligible for election, reelection, appointment or reappointment to the Board of Directors, a person must: (i) have experience in one or more matters pertinent to the Corporation’s business, including without limitation transactional expertise, strategic expertise, corporate governance expertise, operational expertise, marketing expertise, financial expertise, or specific industry expertise in markets targeted by the Corporation; (ii) be at least eighteen years of age; (iii) own in his or her sole name, sufficient shares of the Corporation’s stock to qualify as a director under applicable regulatory requirements; (iv) be a citizen of the United States; (v) reside in, or have his or her primary place of business located within, a 50 mile radius of any operating office or branch of the Corporation or any subsidiary; (vi) not be affiliated with, employed by, a consultant to, or a representative of, or serve as a director of, any individual, corporation, association, partnership, firm, business enterprise or other entity or organization which the Board of Directors, after having such matter formally brought to its attention, determines to be in competition with the Corporation or any of its subsidiaries (any such individual, corporation, association, partnership, firm, business enterprise or other entity or organization being hereinafter referred to as a “Business Competitor”), unless the Board of Directors expressly determines that it would nevertheless be in the Corporation’s best interests for such individual to serve as a director of the Corporation; provided, however, that passive ownership of a debt or equity interest not exceeding 1% of the outstanding debt or equity, as the case may be, in any Business Competitor shall not constitute such affiliation, employment or representation; provided further, that any financial institution shall be presumed to be a Business Competitor unless the Board of Directors determines otherwise; and (vii) not have a significant business affiliation with another director of the Corporation. Except as required by applicable law, the foregoing requirements shall not apply to a person serving as a director on February 17, 2016. In addition, no person shall be eligible for election, reelection, appointment or reappointment to the Board of Directors if such person (i) has been convicted of a crime involving dishonesty or breach of trust, (ii) has been adjudicated bankrupt, or (iii) is currently charged in any information, indictment, or other complaint with the commission of or participation in such a crime.
Section 4. Election of Directors. Directors shall be elected at each annual meeting of shareholders. The Board of Directors shall be divided into three classes, Group I, Group II and Group III, as nearly equal in number as possible, with directors in each group elected for terms of 3 years and until their successors are elected and qualified. The successors to the group of directors whose terms expire shall be identified as being of the same group as the directors they succeed and elected to hold office for a term expiring at the third succeeding annual meeting of shareholders. When the number of directors is changed, any newly created directorships or any decrease in directorships shall be apportioned among the groups by the Board of Directors as to make all groups as nearly equal in number as possible, but in no event will a decrease in the number of directors shorten the term of any director then serving.
Section 5. Regular Meetings. Regular meetings of the Board of Directors may be held without notice at the registered office or principal office of the Corporation or at such other place, within or without the Commonwealth of Virginia, as the Board of Directors may designate from time to time. A regular meeting of the Board of Directors shall be held as soon as practicable after each annual meeting of the shareholders for the purpose of appointing officers and transacting such other business as may properly come before the meeting.
Section 6. Special Meetings. Special meetings of the Board of Directors may be called at any time by the Chairman of the Board of Directors, the Chief Executive Officer, the President or by a majority of the directors. Written notice of the date, time and place of special meetings of the Board shall be given to each director either by personal delivery, by mail or other method of delivery, by electronic mail or by facsimile telecommunication, by or at the direc‐tion of the officer or directors calling the meeting, to the address, electronic mail address or the facsimile number of such director as it appears in the records of the Corporation, not less than 24 hours before the date of the meeting. Neither the business to be transacted at, nor the purpose of, any meeting of the Board of Directors need be specified in the notice or any waiver of notice of such meet‐ing. A director’s attendance at or participation in a meeting waives any required notice to him of the meeting unless at the beginning of the meeting or promptly upon the director’s arrival the director objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to the action taken at the meeting.
Section 7. Waiver of Notice. Notice of any meeting may be waived before or after the date and time of the meeting in a writing signed by the director entitled to notice and delivered to the Secretary of the Corporation for inclusion in the minutes of the meeting or filing with the corporate records.
Section 8. Quorum. A quorum at any meeting of the Board of Directors shall be a majority of the number of directors in office immediately before the meeting begins. If less than a quorum is present at a meeting of the Board of Directors, a majority of the directors present may postpone the meeting to a subsequent date without any further notice to any of the directors.
Section 9. Conduct of Meetings. The Chairman of the Board of Directors, or if such officer is not present, the Chief Executive Officer, shall act as chairman of and preside over meetings of the Board of Directors. If no such officer is present, the directors present shall elect a chairman of the meeting. The Secretary, or if such officer is not present, the Assistant Secretary, shall act as secretary of Board meetings. If no such officer is present, the chairman of the meeting shall appoint a secretary of the meeting.
Section 10. Participation by Conference Telephone. The Board of Directors may permit any or all directors to participate in a meeting of the directors by, or conduct the meeting through the use of, conference telephone or any other means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by such means shall be deemed to be present in person at the meeting.
Section 11. Board Action. If a quorum is present when a vote is taken, the affirmative vote of a majority of directors present at a meeting is the act of the Board of Directors.
Section 12. Action Without Meeting. Any action required or permitted by law to be taken at a meeting of the Board of Directors may be taken without a meeting if the action is taken by all of the members of the Board of Directors. The action shall be evidenced by one or more written consents stating the action taken, signed by each director either before or after the action taken, and included in the minutes or filed with the corporate records reflecting the action taken.
Section 13. Removal. The shareholders entitled to vote may remove any director, with or without cause, by the affirmative vote of a majority of shares entitled to vote in the election of directors. The shareholders may remove a director only at a meeting called for the purpose of removing the director, and the meeting notice must state that the purpose, or one of the purposes of the meeting, is removal of the director.
Section 14. Vacancies. If the office of any director shall become vacant, the directors at the time in office, whether or not a quorum, may, by majority vote of such directors, choose a successor who shall hold office until the next annual meeting of shareholders. In such event, the successor elected by the shareholders at that annual meeting shall hold office for a term that shall coincide with the remaining term of the group of directors to which that person has been elected. Vacancies resulting from an increase in the number of directors shall be filled in the same manner.
Section 15. Resignation. A director may resign at any time by delivering written notice to the Board of Directors, the Chairman of the Board of Directors, the Chief Executive Officer, the President or the Secretary. A resignation shall be effective when delivered, unless the notice specifies a later effective date.
ARTICLE III
Committees
Section 1. Committees. The Board of Directors may, by resolution, create one or more Committees and appoint members of the Board of Directors to serve on them. Each Committee may have two or more members, who serve at the pleasure of the Board of Directors. The Board of Directors shall specify the powers and authorities of the Committee in the resolution creating the Committee, except that a committee may not (i) approve or recommend to the shareholders any action which requires shareholder approval, (ii) fill vacancies on the Board or any other Committees, (iii) amend the articles of incorporation, (iv) adopt, amend, or repeal the Bylaws, (v) approve a plan of merger not requiring shareholder approval, (vi) authorize or approve distributions which do not conform to general formula or method prescribed by the Board of Directors, or (vii) authorize or approve the issuance, sale, or contract for sale of shares of stock, or determine the designation and relative rights, preferences and limitation of a class or series of shares of stock, except as the Board of Directors may authorize a Committee, or a senior executive officer of the Corporation, to do so within the limits specifically prescribed by the Board of Directors. Each Committee shall report its actions to the Board of Directors at the next meeting of the Board.
Section 2. Notice of Committee Meetings; Quorum. The provisions of Sections 6 through 13 of Article II, which provide for, among other things, meetings, action without meetings, notice and waiver of notice, quorum and voting requirements of the Board of Directors, shall apply to committees and their members as well.
ARTICLE IV
Officers
At the regular meeting of the Board of Directors held as soon as practicable after each annual meeting of the shareholders, the Board of Directors shall elect a Chairman of the Board, a Chief Executive Officer, a President , a Secretary, a Treasurer, and may elect or appoint one or more Vice-Presidents or such other officers as it may deem proper. The Chairman of the Board shall be chosen from among the directors. Any officer may hold more than one office simultaneously. All officers shall serve for a term of one year until their respective successors are elected and qualify, but any officer may be removed summarily with or without cause at any time by the vote of a majority of the directors. The directors shall fill any vacancies among the officers. The officers of the Corporation shall have such powers and duties as generally pertain to their respective offices as well as such powers and duties as from time to time may be delegated to them by the Board of Directors.
ARTICLE V
Indemnification
Section 1. Advances for Expenses. Subject to the terms and conditions of Article VII of the Articles of Incorporation of the Corporation, which shall control, the Corporation shall pay for or reimburse the reasonable expenses incurred by a director, officer, employee or agent who is party to a proceeding if (i) the director, officer, employee, or agent furnishes the Corporation with written statement of his or her good faith belief that he or she has met the standard of conduct described in Article VII, Section 1 of the Articles of Incorporation of the Corporation, (ii) the director, officer, employee, or agent furnishes to the Corporation a written undertaking, executed personally, to repay the advance if it is ultimately determined that he or she did not meet the standard of conduct, and (iii) a determination is made that the facts then known to those making the determination would not preclude indemnification under this Section.
Section 2. Determination and Authorization of Indemnification.
(a) Subject to the terms and conditions of Article VII of the Articles of Incorporation of the Corporation, which shall control, the Corporation will indemnify a director, officer, employee, or agent only as authorized in the specific case upon a determination that indemnification of the director, officer, employee, or agent is permissible in the circumstances because he or she has met the standard of conduct.
(b) The determination shall be made by any of the following:
(1) a majority vote of a committee duly designated by the Board of Directors who are not at the time parties to the proceeding;
(2) a majority vote of a committee duly designated by the Board of Directors consisting solely of one or more directors not at the time parties to the proceeding if a quorum cannot be obtained;
(3) by special legal counsel either selected by the Board of Directors or its committee or, if a quorum of the Board of Directors cannot be obtained and a committee cannot be designated, selected by a majority vote of the vote of the full Board of Directors, in which selection those directors who are parties to the proceeding may participate; or
(4) by the shareholders, excluding shares owned by or voted under the control of directors who are, at the time, parties to the proceeding.
ARTICLE VI
Capital Stock
Section 1. Certificates. The shares of capital stock of the Corporation may be certificated or uncertificated as provided under the Virginia Stock Corporation Act. All certificates representing shares of capital stock of the Corporation shall be in such forms as prescribed by the Board of Directors and executed by the Chairman of the Board, the Chief Executive Officer or the President and by the Secretary or an Assistant Secretary and stating thereon the information required by law. Transfer agents and/or registrars for one or more classes of the stock of the Corporation may be appointed by the Board of Directors and may be required to countersign certificates representing stock of such class or classes. In the event that any officer whose signature or facsimile thereof shall have been used on a stock certificate shall for any reason cease to be an officer of the Corporation and such certificate shall not then have been delivered by the Corporation, the Board of Directors may nevertheless adopt such certificate and it may then be issued and delivered as though such person had not ceased to be an officer of the Corporation. Within a reasonable time after the issuance or transfer of uncertificated shares of the Corporation, the Corporation shall send, or cause to be sent, to the holder a written statement that shall include the information required by law to be set forth on certificates for shares of capital stock.
Section 2. Lost, Destroyed and Mutilated Certificates. Holders of the stock of the Corporation in certificated form shall immediately notify the Corporation of any loss, destruction or mutilation of the certificate therefor, and the Board of Directors may, in its discretion, cause one or more new certificates or evidence of such holder’s ownership of such shares in uncertificated form for the same number of shares in the aggregate to be issued to such shareholder upon the surrender of the mutilated certificate or upon satisfactory proof of such loss or destruction, and the deposit of a bond in such form and amount and with such surety as the Board of Directors may require.
Section 3. Transfer of Stock. The stock of the Corporation shall be transferable or assignable only on the stock transfer books of the Corporation by the holders in person or by attorney, and in the case of shares of stock of the Corporation represented by a certificate, on surrender of the certificate for such shares duly endorsed and, if sought to be transferred by attorney, accompanied by a written power of attorney to have the same transferred on the stock transfer books of the Corporation. Uncertificated shares shall be transferable or assignable only on the stock transfer books of the Corporation upon proper instruction from the holder of such shares.
Section 4. Holders of Shares. Except as otherwise expressly required by Virginia law, the Corporation may treat the person in whose name shares of stock of the Corporation (whether or not represented by a certificate) stand of record on its stock transfer books as the absolute owner of the shares and the person exclusively entitled to receive notification and distributions, to vote, and to otherwise exercise the rights, powers and privileges of ownership of such shares, and the Corporation shall not be obligated to recognize any equitable or other claim to or interest in any share on the part of any other person, whether or not it shall have express or other notice hereof.
Section 5. Proxy Cards. Any shareholder directly or indirectly soliciting proxies from other shareholders must use a proxy card other than white, which shall be reserved for exclusive use by the Board of Directors.
ARTICLE VII
Miscellaneous Provisions
Section 1. Seal. The seal of the Corporation shall consist of a flat-faced circular die (of which there may be any number of counterparts) with the words “SEAL” and “VIRGINIA.”
Section 2. Fiscal Year. The fiscal year of the Corporation shall end on December 31st of each year.
Section 3. Books and Records. The Corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its shareholders and Board of Directors. The Corporation shall keep at its registered office or principal place of business, or at the office of its transfer agent or registrar a record of its shareholders, giving the names and addresses of all shareholders, and the number, class and series of the shares being held.
Section 4. Voting of Stock Held. Unless otherwise designated by the Board of Directors, the President may either appoint attorneys to vote any stock of any other corporation owned by this Corporation or may attend any meeting of the holders of stock of such other corporation and vote such shares in person.
Section 5. Checks, Notes and Drafts. Checks, notes, drafts and other orders for the payment of money shall be signed by such persons as the Board of Directors from time to time may authorize. When the Board of Directors so authorizes, however, the signature of any such person may be a facsimile.
Section 6. Amendment of Bylaws. These Bylaws may be amended or altered at any meeting of the Board of Directors.
EXHIBIT 10.1
FORM OF EXECUTIVE OFFICER
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (the “Agreement”) is made and entered into as of [•], 2022, between MAINSTREET BANCSHARES, INC., a Virginia corporation (the “Company”), and the undersigned Executive Officer of the Company (“Indemnitee”).
WHEREAS, highly competent persons have become more reluctant to serve corporations as officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities;
WHEREAS, the Board of Directors of the Company (the “Board”) believes that it is reasonable, prudent and necessary for the Company to obligate itself contractually to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified and adequately protected;
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws of the Company, as amended (the “Bylaws”), and the Articles of Incorporation of the Company, as amended (the “Articles”), and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee is willing to continue to serve as an Executive Officer (as hereinafter defined) of the Company on the condition that Indemnitee be indemnified and insured in accordance with the terms of this Agreement in addition to the indemnification provided pursuant to the Articles and Bylaws, and any resolutions adopted pursuant thereto.
NOW, THEREFORE, in consideration of Indemnitee’s agreement to continue to serve as an Executive Officer of the Company, from and after the date hereof, the parties do hereby covenant and agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify Indemnitee to the fullest extent permitted by the Virginia Stock Corporation Act (the “VSCA”), Article VI of the Articles and Article V of the Bylaws, as each may be amended from time to time, except an indemnity against his or her willful misconduct or a knowing violation of criminal law; provided, however, that no such amendment shall diminish Indemnitee’s indemnification rights under this Agreement.
1. Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee conducted himself or herself in good faith; and believed: (i) in the case of conduct in his or her official capacity with the Company, that his or her conduct was in its best interests; and (ii) in all other cases, that his or her conduct was at least not opposed to the Company’s best interests, and (iii) in the case of a criminal proceeding, that he or she had no reasonable cause to believe his or her conduct was unlawful (collectively, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the VSCA that is more favorable to Indemnitee).
2. Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section l(b) if, by reason of his or her Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a Proceeding by or in the right of the Company. Pursuant to this Section 1(b), Indemnitee shall be indemnified against all Expenses (as hereinafter defined) and Liabilities (as herein after defined) incurred or paid by Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding or any claim, issue or matter therein, unless it shall ultimately be determined by final judicial decision by a court of competent jurisdiction from which there is no further right to appeal (“Final Adjudication”) that Indemnitee engaged in willful misconduct or a knowing violation of criminal law.
3. Proceedings by or in the Right of the Company. Indemnitee shall be entitled to the rights of indemnification provided in this Section 1(c) if, by reason of his or her Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding brought by or in the right of the Company. Pursuant to this Section 1(c), Indemnitee shall be indemnified against all Expenses incurred or paid by Indemnitee, or on Indemnitee’s behalf, in connection with such Proceeding unless it shall ultimately be determined by a Final Adjudication that Indemnitee engaged in willful misconduct or a knowing violation of criminal law; provided, however, only to the extent required by applicable law, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless and to the extent that any court of competent jurisdiction shall determine that such indemnification may be made.
4. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. Notwithstanding and in addition to any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any Proceeding, he or she shall be indemnified to the maximum extent permitted by applicable law, as such may be amended from time to time, against all Expenses incurred or paid by Indemnitee or on Indemnitee’s behalf in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more, but less than all, claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all Expenses incurred or paid by Indemnitee or on Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For purposes of this Section 1(d) and without limitation, the termination of any claim, issue or matter in a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity; Limitations.
1. In addition to the indemnification provided for in Section 1 of this Agreement and subject to the limitations set forth in Section 2(b) below, the Company shall and hereby does indemnify and hold harmless Indemnitee against all Expenses and Liabilities incurred or paid by Indemnitee or on Indemnitee’s behalf if, by reason of his or her Corporate Status, Indemnitee is, or is threatened to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right of the Company), including, without limitation, all liability arising out of the negligence or active or passive wrongdoing of Indemnitee.
2. The Company shall not indemnify Indemnitee (i) if such indemnification or payment would constitute a “prohibited indemnification payment” and/or would not constitute a “permissible indemnification payment” under the FDIC Regulations or any other applicable laws, rules or regulations, (ii) for an accounting of profits arising from the purchase and sale by the Indemnitee of securities under Section 16(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or (iii) for violations of federal or state insider trading laws, unless, in each such case, Indemnitee has been successful on the merits, received the Company’s written consent prior to incurring an Expense or, after receiving the Company’s written consent to incurring the cost of settlement, settled the Proceeding. Unless prohibited by law, this limitation shall not limit the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 5 of this Agreement. In addition, the Company shall not be obligated to make any payment to Indemnitee that is finally determined (under the procedures, and subject to the presumptions, set forth in Sections 6, 7 and 21 hereof) to be unlawful.
3. Contribution.
1. Whether or not the indemnification provided in Sections 1 and 2 hereof is available, in respect of any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall pay, in the first instance, the entire amount of any judgment or settlement of such action, suit or proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter into any settlement of any action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
2. Without diminishing or impairing the obligations of the Company set forth in Section 3(a), if, for any reason, Indemnitee shall elect or be required to pay all or any portion of any judgment or settlement in any threatened, pending or completed action, suit or proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute to the amount of Expenses and Liabilities incurred or paid or payable by Indemnitee or on Indemnitee’s behalf in proportion to the relative benefits received by the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the transaction or events from which such action, suit or proceeding arose; provided, however, that the proportion determined on the basis of relative benefit may, to the extent necessary to conform to law, be further adjusted by reference to the relative fault of the Company and all officers, directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, in connection with the transaction or events that resulted in such expenses, judgments, fines or settlement amounts, as well as any other equitable considerations which applicable law may require to be considered. The relative fault of the Company and all officers, directors or employees of the Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be determined by reference to, among other things, the degree to which their actions were motivated by intent to gain personal profit or advantage, the degree to which their liability is primary or secondary and the degree to which their conduct is active or passive.
3. The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims of contribution which may be brought by officers, directors or employees of the Company, other than Indemnitee, who may be jointly liable with Indemnitee.
4. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee, whether for Liabilities and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. Indemnification for Expenses of a Witness or in Response to a Subpoena. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness, or is made (or asked) to respond to discovery requests or a subpoena or similar demand for documents or testimony, in any Proceeding involving the Company, its officers, directors, shareholders or creditors to which Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses incurred or paid by Indemnitee or on Indemnitee’s behalf in connection therewith and in the manner set forth in this Agreement.
5. Advancement of Expenses. Upon receipt by the Company of an undertaking by Indemnitee and notwithstanding any other provision of this Agreement, the Company shall advance all Expenses incurred or paid by or on behalf of Indemnitee in connection with any Proceeding within twenty (20) days after the receipt by the Company of a statement or statements from Indemnitee requesting such advance or advances from time to time, whether prior to or after final disposition of such Proceeding. Such statement or statements shall reasonably evidence the Expenses incurred or paid by Indemnitee and shall include or be preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any Expenses advanced if it shall ultimately be determined by Final Adjudication that Indemnitee is not entitled to be indemnified against such Expenses. Any advances and undertakings to repay pursuant to this Section 5 shall be unsecured and interest free and made without regard to Indemnitee’s financial ability to repay such Expenses.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification. It is the intent of this Agreement to secure for Indemnitee rights of indemnity that are at least as favorable as may be permitted under the VSCA and public policy of the Commonwealth of Virginia. Accordingly, the parties agree that the following procedures and presumptions shall apply in the event of any question as to whether Indemnitee is entitled to indemnification under this Agreement:
1. To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a written request, including therein or therewith such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent the Standard of Conduct has been satisfied and Indemnitee is entitled to indemnification. Promptly upon receipt of such request for indemnification, the Secretary of the Company (or, if Indemnitee is currently serving as the Secretary, the Chief Executive Officer) shall advise the Board in writing that Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee to provide such a request to the Company, or to provide such a request in a timely fashion, shall not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent that, the Company can demonstrate by clear and convincing evidence that such failure actually and materially prejudices the interests of the Company.
2. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 6(a) hereof, indemnification is to be presumed. Such presumption is rebuttable solely by clear and convincing evidence that indemnification is not appropriate. A determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board, with the consent of Indemnitee: (1) if there are two or more Disinterested Directors, by a majority vote of all the Disinterested Directors, a majority of whom shall for such purpose constitute a quorum, (2) by the majority of a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, (3) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (4) if so directed by the Board, by the shareholders of the Company; provided, however, that if a Change of Control has occurred since the date of the alleged conduct giving rise to a claim for indemnification, such determination shall be made by Independent Counsel.
3. If the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 6(b) hereof, Independent Counsel shall be selected as provided in this Section 6(c). Independent Counsel shall be selected by the Board or, if a Change of Control has occurred since the date of the alleged conduct giving rise to a claim for indemnification pursuant to Section 6(b), by the Board and Indemnitee. Within ten (10) days after written notice to Indemnitee of initial selection of Independent Counsel by the Board shall have been given, Indemnitee may deliver to the Company a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 13 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If a written objection is made and substantiated, Independent Counsel selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of the Commonwealth of Virginia (“Virginia Court”) has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition a Virginia Court for resolution of any objection which shall have been made by Indemnitee to the Company’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such other person as the court shall designate, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall pay all reasonable fees and expenses incident to the procedures of this Section 6(c), regardless of the manner in which such Independent Counsel was selected or appointed.
4. In making a determination with respect to entitlement to indemnification hereunder, the person(s) or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure of the Company (including by the Board or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable Standard of Conduct, nor an actual determination by the Company (including by the Board or Independent Counsel) that Indemnitee has not met such applicable Standard of Conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable Standard of Conduct.
5. Indemnitee shall be deemed to have acted in good faith unless it shall ultimately be determined by Final Adjudication that Indemnitee’s actions were not based on the records or books of account of the Company (as hereinafter defined), including financial statements, or on information supplied to Indemnitee by appropriate officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser, investment banker or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all times met the applicable Standard of Conduct. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
6. If the person, persons or entity empowered or selected under Section 6(b) to determine whether Indemnitee is entitled to indemnification shall not have made a determination within sixty (60) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall be deemed to have been made and Indemnitee shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law; provided, however, that the foregoing provisions of this Section 6(f) shall not apply if the determination of entitlement to indemnification is to be made by the shareholders of the Company pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after receipt by the Company of the request for such determination, the Board or the Disinterested Directors, if appropriate, resolve to submit such determination to the shareholders for their consideration at an annual meeting thereof to be held within one hundred twenty (120) days after such receipt and such determination is made thereat; or (B) a special meeting of the shareholders is called within fifteen (15) days after such receipt for the purpose of making such determination, and such special meeting is held for such purpose within sixty (60) days after having been so called and such determination is made thereat. If the Company denies a written request for indemnification or advancement of Expenses, in whole or in part, or if payment in full pursuant to such request is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made (or twenty (20) days after receipt of a claim for advancement of Expenses under Section 5 hereof), the right to indemnification or advancement of expenses as granted by the Articles shall be enforceable by Indemnitee in an appropriate court of the Commonwealth of Virginia.
7. Indemnitee shall cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Independent Counsel, member of the Board or shareholder of the Company shall act reasonably and in good faith in making a determination regarding Indemnitee’s entitlement to indemnification under this Agreement. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
8. The Company acknowledges that a settlement or other disposition short of Final Adjudication may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.
9. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee was guilty of willful misconduct or a knowing violation of criminal law.
10. The Company shall not enter into any settlement of any action, suit or proceeding in which Indemnitee is or could reasonably become a party unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
11. Notwithstanding any other provision of this Agreement, with respect to any Proceeding described in Indemnitee’s notice to the Company submitted in accordance with Section 6(a):
1. Except as otherwise provided in this Section 6(h), to the extent that it may wish, the Company may, separately or jointly with any other indemnifying party, assume the defense of the Proceeding. After notice from the Company to Indemnitee of its election to assume the defense of the Proceeding, the Company shall not be liable to Indemnitee under this Agreement for any Expenses subsequently incurred by Indemnitee, except as otherwise provided below. Indemnitee shall have the right to employ Indemnitee’s own counsel in such Proceeding, but the fees and expenses of such counsel incurred after notice from the Company of its assumption of the defense thereof shall be at the expense of Indemnitee unless (A) the employment of counsel by Indemnitee has been authorized by the Company, (B) under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in conduct of the defense of the Proceeding and such determination is supported by an opinion of qualified legal counsel addressed to the Company, or (C) the Company shall not within thirty (30) calendar days of receipt of notice from Indemnitee in fact have employed counsel to assume the defense of the Proceeding.
2. The Company shall not be entitled to assume the defense of any Proceeding as to which Indemnitee shall have made the determination provided for in Section (k)(i)(B) above.
3. Regardless of whether the Company has assumed the defense of a Proceeding, the Company shall not settle any Proceeding in any manner that would impose any penalty or limitation on, or require any payment from, Indemnitee without Indemnitee’s written consent, which shall not be unreasonably withheld.
4. Until the Company receives notice of a Proceeding from Indemnitee, the Company shall have no obligation to indemnify or advance Expenses to Indemnitee as to Expenses incurred prior to Indemnitee’s notification of Company.
12. Notwithstanding anything in this Agreement to the contrary, no determination (if required by applicable law) as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
7. Remedies of Indemnitee.
1. In the event that (i) a determination is made pursuant to Section 6 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no determination of entitlement to indemnification is made pursuant to Section 6(b) within sixty (60) days (or ninety (90) days in the case of any determination made pursuant to Section 6(f)(A) or (B)) after receipt by the Company of the request for indemnification or (iv) payment of indemnification is not made within thirty (30) days after a determination has been made that Indemnitee is entitled to indemnification or such determination is deemed to have been made pursuant to Section 6(f) of this Agreement, Indemnitee shall be entitled to an adjudication in an appropriate court of the Commonwealth of Virginia of Indemnitee’s entitlement to such indemnification. The Company shall not oppose Indemnitee’s right to seek any such adjudication.
2. In the event that a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under Section 6(b).
3. If a determination shall have been made pursuant to Section 6(b) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s misstatement not materially misleading in connection with the application for indemnification, or (ii) a prohibition of such indemnification under applicable law.
4. In the event that Indemnitee, pursuant to this Section 7, seeks a judicial adjudication of his or her rights under, or to recover damages for breach of, this Agreement, or to recover under any directors’ and officers’ liability insurance policies maintained by the Company, the Company shall pay on Indemnitee’s behalf, in advance, any and all expenses (of the types described in the definition of “Expenses” in Section 13 of this Agreement) incurred or paid by Indemnitee in such judicial adjudication, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of expenses or insurance recovery.
5. The Company shall be precluded from asserting in any judicial proceeding commenced pursuant to this Section 7 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court that the Company is bound by all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all Expenses and, if requested by Indemnitee, shall (within thirty (30) days (or twenty (20) days in the case of a claim for advancement of Expenses) after receipt by the Company of a written request therefore) advance, to the extent not prohibited by law, such Expenses to Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee for indemnification or advance of Expenses from the Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company, regardless of whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of Expenses or insurance recovery, as the case may be.
6. Notwithstanding anything in this Agreement to the contrary, no determination as to entitlement to indemnification under this Agreement shall be required to be made prior to the final disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Primacy of Indemnification; Subrogation.
1. The rights of indemnification as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, the Bylaws, any agreement, a vote of shareholders, a resolution of the Board or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken or omitted by Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in the VSCA, whether by statute or judicial decision, permits greater indemnification than would be afforded currently under the Articles, Bylaws and this Agreement, Indemnitee shall enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
2. The Company shall maintain an insurance policy or policies providing reasonable and customary directors and officers liability insurance coverage as compared with similarly situated companies (as determined by the Board in its reasonable discretion) for directors, officers, employees, or agents or fiduciaries of the Company or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that such person serves at the request of the Company, and Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any director, officer, employee, agent or fiduciary under such policy or policies. Upon receipt of a notice of a claim pursuant to the terms hereof, the Company shall give prompt notice of the commencement of such proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such proceeding in accordance with the terms of such policies.
3. In the event of any payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all documents and instruments reasonably required and take all action reasonably necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
4. The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually received such payment under any insurance policy, contract, agreement or otherwise.
5. The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise shall be reduced by any amount Indemnitee has actually received as indemnification or advancement of expenses from such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any such part of any Proceeding) prior to its initiation, (ii) such Proceeding is being brought by Indemnitee to assert, interpret or enforce Indemnitee’s rights under this Agreement or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law. Additionally, the Company shall not be obligated to make any indemnity under this Agreement to the extent prohibited by applicable law.
10. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge that in certain instances, federal law or public policy may override applicable state law and prohibit the Company from indemnifying Indemnitee under this Agreement or otherwise. For example, the Company and Indemnitee acknowledge that the Securities and Exchange Commission (the “SEC”) has taken the position that indemnification is not permissible for liabilities arising under certain federal securities laws, federal legislation prohibits indemnification for certain ERISA violations, and FDIC Regulations prohibit a “prohibited indemnification payment.” Indemnitee understands and acknowledges that the Company has undertaken or may be required in the future to undertake with the SEC to submit the question of indemnification to a court in certain circumstances for a determination of the Company’s right under public policy to indemnify Indemnitee.
11. Duration of Agreement. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee is an Executive Officer of the Company (or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise) and shall continue thereafter so long as Indemnitee shall be subject to any Proceeding (or any proceeding commenced under Section 7 hereof) by reason of his or her Corporate Status, whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement. The rights provided under this Agreement shall continue as to Indemnitee even though he or she may have ceased to be an officer of the Company or any of the Company’s direct or indirect wholly-owned subsidiaries or to otherwise have Corporate Status. This Agreement shall be binding upon the Company and its successors and assigns, including, without limitation, any corporation or other entity which may have acquired all or substantially all of the Company’s assets or business or into which the Company may be consolidated or merged, and shall inure to the benefit of Indemnitee and his or her spouse, successors, assigns, heirs, devisees, executors, administrators or other legal representatives. The Company shall require any successor or assignee (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, by written agreement in form and substance reasonably satisfactory to the Company, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession or assignment had taken place.
12. Security. To the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
13. Enforcement.
1. The Company expressly confirms and agrees that it has entered into this Agreement and assumes the obligations imposed on it hereby in order to induce Indemnitee to continue to serve as an Executive Officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as an Executive Officer the Company.
2. The Company shall not seek from a court, or agree to, a “bar order” which would have the effect of prohibiting or limiting Indemnitee’s rights to receive advancement of expenses under this Agreement.
14. Definitions. For purposes of this Agreement:
1.“ Change of Control” shall mean the occurrence of any of the following events on or after the date of this Agreement: Merger: The Company merges into or consolidates with another entity, or merges another corporation into the Company, and as a result, less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Company immediately before the merger or consolidation; Acquisition of Significant Share Ownership: A person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Company’s voting securities; provided, however, this clause (ii) shall not apply to beneficial ownership of the Company’s voting shares held in a fiduciary capacity by an entity of which the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities; Change in Board Composition: Individuals who constitute the Company’s Board of Directors on the date hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the date hereof whose election was approved by a vote of at least three-quarters of the directors comprising the Incumbent Board shall be considered, for purposes of this clause (iii), as though he or she was a member of the Incumbent Board; or Sale of Assets: The Company sells to a third party all or substantially all of its assets.
This definition of “Change of Control” shall be construed to be consistent with the requirements of Internal Revenue Code Section 409A and Treasury Regulations promulgated thereunder.
2.“ Company” shall mean MainStreet Bancshares, Inc., MainStreet Bank, and any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise that Indemnitee is or was serving at the request of the Company as a director, officer, partner, trustee, member, employee, agent or fiduciary.
3.“ Corporate Status” describes the status of a person who is or was a director, officer, partner, trustee, member, employee, agent or fiduciary of the Company or of any other corporation, partnership, joint venture, trust, limited liability company, employee benefit plan or other enterprise that such person is or was serving at the request of the Company.
4.“ Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
5.“ Executive Officer” shall have the meaning of the term “officer” as such term is defined in Rule 16a-l(f) under the Exchange Act.
6.“ Expenses” shall include all reasonable and documented attorneys’ fees, document and e-discovery costs, litigation expenses, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding and any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including without limitation the premium, security for, and other costs relating to any cost bond, supersedes bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments, fines or penalties against Indemnitee.
7.“ FDIC Regulations” means regulations of the Federal Deposit Insurance Corporation (or any successor provisions).
8.“ Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. The Company agrees to pay the reasonable fees of the Independent Counsel referred to above and to fully indemnify such counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
9.“ Liabilities” includes judgments, fines, penalties, interest, assessments, charges and amounts paid in settlement.
10.“ Proceeding” includes, but is not limited to, any threatened, pending or completed action, suit, arbitration, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing, subpoena or any other actual, threatened or completed proceeding, whether brought by or in the right of the Company or otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is or will be involved as a party, as a witness or otherwise, by reason of Indemnitee’s Corporate Status, by reason of any action taken by Indemnitee or of any inaction on Indemnitee’s part while acting in his or her Corporate Status; in each case (i) whether or not Indemnitee is acting or serving in any such capacity at the time any liability or expense is incurred for which indemnification can be provided under this Agreement and (ii) including one pending on or before the date of this Agreement, but excluding one initiated by Indemnitee pursuant to Section 7 of this Agreement to enforce his or her rights under this Agreement.
11.“ Undertaking” shall mean an undertaking by Indemnitee to repay Expenses if (i) to the extent such Expenses are not covered by payments from insurance or bonds purchased pursuant to Section 359.1(l)(2) of the FDIC Regulations, the advanced Expenses subsequently are determined to be, by a court of competent jurisdiction from which no appeal can be taken, “prohibited indemnification payments”, as defined under the FDIC Regulations, or (ii) it shall ultimately be determined by a court of competent jurisdiction from which no appeal can be taken that Indemnitee is not entitled to be indemnified by the Company.
15. Severability. The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of any other provision. Without limiting the generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification rights to the fullest extent permitted by applicable laws. In the event any provision hereof conflicts with any applicable law, such provision shall be deemed modified, consistent with the aforementioned intent, to the extent necessary to resolve such conflict.
16. Modification and Waiver. No waiver, supplement, modification, termination or amendment of this Agreement shall be binding unless (a) it is executed in writing by both of the parties hereto, (b) it specifically refers to this Agreement and (c) it specifically states that the party, as the case may be, is waiving, modifying or amending its rights hereunder. Any such amendment, modification or waiver shall be effective only in the specific instance and for the specific purpose for which it was given. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing waiver.
17. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with or otherwise receiving any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless and only to the extent that such failure or delay materially prejudices the Company.
18. Notices. All notices and other communications given or made pursuant to this Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifying next day delivery, with written verification of receipt. All communications shall be sent:
To Indemnitee at the address set forth below Indemnitee’s signature hereto.
To the Company at:
MainStreet Bancshares, Inc.
10089 Fairfax Blvd.
Fairfax, VA 22030
Attention:
or to such other address as may have been furnished to Indemnitee by the Company or to the Company by Indemnitee, as the case may be.
19. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
20. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflict of laws rules. The Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in a Virginia Court, and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Virginia Courts for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Virginia Courts and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Virginia Courts has been brought in an improper or inconvenient forum.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Indemnification Agreement on and as of the day and year first above written.
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COMPANY
MAINSTREET BANCSHARES, INC.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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[Signature page to Indemnification Agreement]
EXHIBIT 10.2
EXECUTIVE EMPLOYMENT AGREEMENT
THIS EXECUTIVE EMPLOYMENT AGREEMENT (the “Agreement”) is made and entered into as of the 17th day of November 2022, by and between MAINSTREET BANK, a Virginia chartered bank (the “Bank”) and a wholly owned subsidiary of MainStreet Bancshares, Inc. (“Company”), and Abdul Hersiburane (the “Executive”). This Agreement collectively refers to the Bank and the Executive as the “Parties,” and separately may refer to either one of them as a “Party.”
RECITALS
R-1. The Bank is engaged in the operation of an FDIC insured depository institution with headquarters in Fairfax, Virginia, serving the Washington, D. C. Metropolitan area.
R-2. The Executive is currently employed as the Bank’s President and is involved in the management of the business and affairs of the Bank.
R-3. The Bank wishes to provide the Executive with additional assurances that his continued employment as the Bank’s President is desired and is in the best interests of the Bank and the Executive.
R-4. The Parties have mutually agreed upon the terms and conditions of the Executive’s continued employment with the Bank as hereinafter set forth.
TERMS OF AGREEMENT
NOW, THEREFORE, for and in consideration of this Agreement’s Recitals, the mutual promises and undertakings of the Parties as hereinafter set forth, and other good and valuable consideration which the Parties hereby agree is sufficient, the Parties covenant and agree as follows:
Section 1. Employment.
(a) The Executive is employed as the President of the Bank. The Executive will continue to report to the Chief Executive Officer of the Bank and will be managed by the Chief Executive Officer consistent with the terms of this Agreement. The Executive’s duties, responsibilities and authority as President of the Bank shall be commensurate with those normally undertaken by presidents of banks similar to the Bank in nature and size at the time the Executive exercises such duties, responsibilities or authority. Additionally, in exercising his duties, the Executive shall have such authority and discretion to make decisions binding upon the Bank as are reasonable and consistent with the good faith discharge of duties set forth in this Agreement and the policies established by the Bank’s Board of Directors from time to time. The Bank shall cover as an insured person the Executive for all applicable director and officer liability insurance provided to other similarly situated executives of the Bank.
(b) References in this Agreement to services rendered for the Bank and compensation and benefits payable or provided by the Bank shall include services rendered for and compensation and benefits payable or provided by any Affiliate. References in this Agreement to the “Bank” also shall mean and refer to each Affiliate for which the Executive performs services. References in this Agreement to an “Affiliate” shall mean any business entity that, directly or indirectly, through one or more intermediaries, controls, or is controlled by the Bank.
(c) The relationship between the Bank and the Executive shall be that of an employer and an employee. The Board of Directors shall have the sole authority to set and establish terms, conditions, and standards of employment applicable to the Executive, subject to the terms and conditions of this Agreement. The Executive's employment shall be for no definite period of time, and the Executive or the Bank may terminate such employment relationship at any time for any reason or no reason. The employment at-will relationship shall remain in full force and effect regardless of any statements to the contrary made by Bank personnel or set forth in any documents other than those explicitly made to the contrary and signed by an authorized representative of the Bank.
(d) The Executive shall perform his duties primarily at the Bank’s main offices in Fairfax County, Virginia. The Executive shall travel for business reasons from time to time as is reasonably necessary for the performance of his duties hereunder.
(e) Upon the termination of employment of the Executive as an officer and employee of the Bank for any reason, the Executive hereby agrees and acknowledges that this Agreement shall constitute such individual’s letter of resignation as a member of the Board of Directors of the Bank, and the resignation as an employee, officer and director of all parent and subsidiary corporations of the Bank, effective as of the date of such termination of employment with the Bank.
Section 2. Term. The initial term of this Agreement shall commence on November 17, 2022 (the “Effective Date”), and shall continue until December 31, 2024, unless sooner terminated under the terms of this Agreement (the “Initial Term”). This Agreement will automatically renew annually for successive two-year terms on January 1, 2024, and on each January 1 thereafter (“Renewal Date”), unless either party notifies the other in writing not later than the October 1 immediately prior to the next Renewal Date that the Agreement shall not be extended beyond its current term, or unless sooner terminated under the terms of this Agreement. The first renewal term of this Agreement shall commence on January 1, 2024, and shall end on December 31, 2025, unless earlier terminated as provided herein.
Section 3. Exclusive Service. The Executive shall devote his best efforts and full time to rendering services on behalf of the Bank in furtherance of its best interests, except for any period or periods of time during which the Executive’s ability to discharge any of such duties and responsibilities and devote such time and attention are impaired as a result of a mental or physical disability of his, or he is on vacation, holiday or other leave, or as otherwise agreed to by the Chief Executive Officer. The Executive shall comply with all written policies, standards and regulations of the Bank now or hereafter promulgated and communicated to the Executive and shall perform his duties under this Agreement to the best of his abilities and in accordance with standards of conduct generally applicable to executive officers of similarly situated banks. The obligations of this Section 3 shall not be construed to mean that the Executive shall not be a director of any unaffiliated corporation, or be associated in any way whatsoever with any educational, charitable, civic, social, recreational, youth, sports or other organization or endeavor; provided, however, during the time of his employment under this Agreement, the Executive shall not (1) serve as an officer or director of any other entity or corporation without the express and prior approval of the Board of Directors after full disclosure by the Executive, which approval may be withheld in the Board of Director’s absolute discretion, or (2) be employed by any organization other than the Bank or a subsidiary or Affiliate of the Bank.
Section 4. Salary and Other Compensation.
(a) Base Salary. As compensation while employed hereunder as the President of the Bank, the Executive, during his faithful performance of this Agreement, shall receive an annual base salary of $330,772 (the “Base Salary”). Such Base Salary shall be reviewed annually by the Board of Directors or its Compensation Committee, to ascertain whether such Base Salary should be increased based on the performance of and contributions made by the Executive during the preceding year, the performance of the Bank during the preceding year, the compensation being paid to other senior executives at the Bank, and other factors deemed appropriate.
(b) Incentive Compensation.
(1) Bonus. As additional compensation, the Executive shall be eligible to receive from the Bank, as determined in the sole discretion of the Compensation Committee of the Board of Directors, as recommended by the Chief Executive Officer, either (i) an annual cash bonus in an amount, if any, or (ii) an annual performance-based incentive bonus earned under the MainStreet Bank Executive Incentive Plan (or any successor plan).
(2) Clawback. Executive agrees that any incentive compensation (as determined by the Bank) that Executive receives from the Bank or any Affiliate pursuant to this Agreement or otherwise is subject to repayment to (i.e., clawback by) the Bank or any Affiliate as required by federal law, or the policies of the Bank as may be adopted or amended hereafter from time to time by the Bank on such basis as the Bank determines. Except where offset of, or recoupment from, compensation covered by Internal Revenue Code of 1986, as amended (“Code”) Section 409A is prohibited by Code Section 409A, to the extent allowed by law and as determined by the Bank, Executive agrees that such repayment may, in the discretion of the Bank, be accomplished by withholding of future compensation to be paid to Executive by the Bank or any Affiliate. Any recovery of compensation covered by Code Section 409A shall be implemented in a manner which complies with Code Section 409A.
(c) The Bank will pay to the Executive the Base Salary as provided in Section 4(a) in appropriate installments to conform to the Bank’s regular payroll dates which shall be at least monthly. Further, the Bank will pay to the Executive the Base Salary and all other amounts set forth in this Agreement less appropriate deductions as required by law, or otherwise permitted by the Executive. The Bank shall also withhold and remit to the proper party any amounts agreed to in writing by the Bank and the Executive for participation in any corporate sponsored benefit plans for which a contribution is required.
(d) Except as otherwise expressly set forth hereunder, no compensation shall be paid pursuant to this Agreement in respect of any month or portion thereof subsequent to any termination of the Executive’s employment by the Bank.
Section 5. Corporate Benefit Plans.
(a) General. In addition to those matters set forth in this Agreement, during his employment hereunder, the Executive and, to the extent applicable, Executive’s spouse, legal dependents and beneficiaries shall be entitled to participate in or become a participant in all employee benefit plans and programs, including improvements or modifications of the same, maintained by the Bank (including but not limited to the benefits of certain pension and other retirement benefit plans, profit sharing, stock option, or other plans, benefits, and privileges) and available to other executives of the Bank that includes the Executive, on a basis not less favorable than that provided to such class of employees.
(b) Vacation and Other Leave. The Executive shall be entitled to receive twenty-five (25) days of paid vacation annually (“Vacation Leave”). Executive shall take at least two (2) consecutive weeks of vacation annually that will not overlap with any vacation or planned leave to be taken by the Chief Executive Officer of the Bank. In addition to the Vacation Leave, the Executive shall be permitted additional days of paid leave annually (“Paid Leave Time”) according to the Paid Leave section of the Bank’s Employee Handbook. The Executive shall not at any one time take more than ten (10) consecutive business days of Vacation Leave, Paid Leave Time or combination thereof without the prior approval of the Chief Executive Officer. The Executive shall further be entitled to the number of paid holidays and leaves for illness or temporary disability in accordance with the Bank’s policies for its senior executives.
(c) Health and Disability Insurance. During the term of his employment, the Executive shall be entitled to participate in the medical (including hospitalization), dental, life and disability plans, to the extent offered by the Bank, and in amounts consistent with the Bank’s policy, for other senior executive officers of the Bank.
Section 6. Expense Reimbursements.
(a) General. The Bank shall reimburse the Executive for all reasonable and documented business expenses incurred in the conduct of the Bank’s business. Such expenses will include business meals, out-of-town lodging and travel expenses, and memberships in professional organizations and costs to attend meetings and conventions of business-appropriate organizations and associations. The Executive agrees to timely submit records and receipts and, as may be required by the Board of Directors, explanations of reimbursable items and agrees that the Bank can adopt reasonable rules and policies regarding such reimbursement. The Bank agrees to make prompt payment to the Executive following receipt and verification of such reports.
(b) Reimbursements and In-kind Benefits. All reimbursements and in-kinds benefits payable under this Agreement shall be made in accordance with the Bank’s written policies. If any reimbursement or in-kind benefit is subject to Code Section 409A, then such reimbursement or in-kind benefit shall comply with the applicable requirements of Section 20 hereinafter, including the timing of payment and other provisions set forth in Section 20(d).
Section 7. Termination and Termination Benefits. Notwithstanding the provisions of Section 2, the Executive’s employment hereunder shall terminate under the following circumstances and shall be subject to the following provisions:
(a) Death. If the Executive dies during the term of this Agreement, the Bank shall continue to pay to the Executive’s estate an amount equal to the Executive’s then current Base Salary for a period of 60 days after date of the Executive’s death with such payments to be made on the same periodic dates as salary payments would have been made to the Executive had he not died. In addition, the Bank shall pay to the estate of the Executive within 60 days of the Executive’s death, any unpaid compensation, or benefits, including accrued annual bonus, if any, which otherwise would have been payable to the Executive through the end of the month in which his death occurs.
(b) Disability. The Bank may terminate the Executive’s employment hereunder, after having established the Executive’s Disability, by giving to the Executive written notice of the Bank’s intention to terminate the Executive’s employment for Disability. The Executive’s employment with the Bank shall terminate effective on the 90th day after the Executive’s receipt of such notice if within 90 days after such receipt the Executive shall fail to return to the full-time performance of the essential functions of his position. If the Executive’s employment hereunder is terminated due to the Executive’s Disability, then all compensation and benefits payable to the Executive shall cease on the date of termination; provided, however, that the Bank shall pay to the Executive within 60 days of the date of termination any accrued but unpaid compensation, including accrued annual bonus, if any, which otherwise would have been payable to the Executive through the date of termination.
(c) Termination by the Bank For Cause. The Bank may terminate the Executive’s employment hereunder For Cause, in which event the Bank may elect to terminate the Executive’s employment immediately or upon the expiration of a set period not to exceed 30 days, as set forth in a written notice to the Executive. During any such period between the Executive’s receipt of such notice and the date of termination, the Executive may be relieved of his duties as specified herein and assigned alternate duties by the Chief Executive Officer. If the Executive’s employment hereunder is terminated by the Bank For Cause, then all compensation and benefits payable to the Executive shall cease on the date of termination; provided, however, that the Bank shall pay to the Executive within 60 days of the date of termination any accrued but unpaid compensation, including accrued annual bonus, if any, which otherwise would have been payable to the Executive through the date of termination.
(d) Termination by the Bank Without Cause. The Bank may terminate the Executive’s employment hereunder Without Cause, in which event the Bank may elect to terminate the Executive’s employment immediately or upon the expiration of a set period not to exceed 30 days, as set forth in a written notice to the Executive. During any period between the Executive’s receipt of such notice and the date of termination, the Executive may be relieved of his duties as specified herein and assigned alternate duties by the Chief Executive Officer.
(i) If the Bank terminates the Executive’s employment hereunder Without Cause and not within one year following a Change of Control, then, subject to Section 7(f), the Executive shall receive, in a lump sum on the 60th day following the date of termination, an amount equal to the greater of: (A) the sum of his then current Base Salary for one year plus the average of any annual bonus payments made to the Executive during the two-year period ending on the date of termination, or (B) the sum of his then current Base Salary for the balance, if any, of the remaining period of the current Term of the Agreement plus the average of any annual bonus payments made to the Executive during the two-year period ending on the date of termination.
(ii) Notwithstanding the foregoing, if the Bank terminates the Executive’s employment hereunder Without Cause within one year following a Change of Control, then, subject to Section 7(f), the Executive shall receive, in a lump sum within 30 days following the date of termination, an amount equal to 299% of the Executive’s “annualized includible compensation for the base period” as defined in Code Section 280G in lieu of any other stated severance pay.
(e) Termination by the Executive. The Executive may terminate his employment hereunder by written notice to the Bank effective not less than 60 days after the Bank’s receipt of such notice; provided, however, that subsequent to receipt of such notice, the Executive may be relieved of his duties and assigned alternate duties by the Chief Executive Officer.
(i) Termination by the Executive For Good Reason and Not Within One Year Following Change of Control. If the Executive terminates his employment hereunder For Good Reason and not within one year following a Change of Control, then he shall receive the same compensation and benefits upon termination (including accelerated vesting of equity awards) that he would receive if he were terminated Without Cause and not within one year following a Change of Control as specified in Section 7(d)(i).
(ii) Termination by the Executive For Good Reason Within One Year Following Change of Control. If the Executive terminates his employment hereunder For Good Reason within one year following a Change of Control, he shall receive the same compensation and benefits upon termination that he would receive if he were terminated Without Cause within one year following a Change of Control as specified in Section 7(d)(ii).
(iii) Termination by the Executive other than For Good Reason. If the Executive terminates his employment hereunder other than For Good Reason, then all compensation and benefits payable to the Executive shall cease on the date of termination; provided, however, that the Bank shall pay to the Executive within 60 days of the date of termination any accrued but unpaid compensation, including accrued annual bonus, if any, which otherwise would have been payable to the Executive through the date of termination.
(f) Limitations on Termination Compensation. Notwithstanding anything in this Agreement to the contrary:
(i) If the Executive is at anytime in breach of either Section 10 or Section 11 of this Agreement, then the Executive shall not thereafter be entitled to receive any amounts payable pursuant to Section 7(d)(i), 7(d)(ii), 7(e)(i) or 7(e)(ii) (“Termination Compensation”), and none of the Executive’s unvested equity awards will be subject to accelerated vesting. In addition, if such breach occurs within 12 months following the date of termination, the Executive shall repay to the Bank any Termination Compensation received and all vested stock previously received as compensation, and any outstanding equity awards that were granted to the Executive by the Company as compensation for services to the Company or the Bank will be forfeited to the Company.
(ii) If the Executive engages in any activity seeking to establish a Competitive Business in the Trade Area during the Non-Compete Period (as defined in Section 11(a) below), the Executive shall not be entitled to any Termination Compensation, the Executive shall repay to the Bank any Termination Compensation received and all vested stock previously received as compensation, and any outstanding equity awards that were granted to the Executive by the Company as compensation for services to the Company or the Bank will be forfeited to the Company.
(iii) Notwithstanding anything herein to the contrary, any payments made to the Executive pursuant to the Agreement, or otherwise, shall be subject to and conditioned upon compliance with 12 USC Section 1828(k) and FDIC Regulation 12 CFR Part 359, Golden Parachute Indemnification Payments promulgated thereunder, to the extent such laws and regulations are applicable to the Bank, the Company, and the Executive.
(g) Definitions. For purposes of this Agreement, the following terms have the following meanings:
(i) “Cause” shall mean:
(1) Gross incompetence, gross negligence, willful misconduct, or breach of a material fiduciary duty owed to the Bank or any subsidiaries or Affiliates thereof;
(2) Conviction of a felony, a crime of moral turpitude, commission of an act of embezzlement or fraud against the Bank or any subsidiary or Affiliate thereof, the commission of repeated misdemeanors, or other willful misconduct that materially adversely affects the business or reputation of the Bank or any subsidiaries or Affiliates thereof;
(3) Failure to cure a material breach by the Executive of a material term of this Agreement after 10 days written notice of the breach;
(4) Deliberate dishonesty of the Executive with respect to the Bank or any subsidiary or Affiliate thereof; or
(5) Permanent disbarment or suspension of the Executive by any regulatory body or agency lasting more than 60 days.
(ii) Change of Control. “Change of Control” shall mean the occurrence of any of the following events:
(1) Merger: The Bank or the Company merges into or consolidates with another entity, or merges another bank or corporation into the Bank or the Company, and as a result, less than a majority of the combined voting power of the resulting corporation immediately after the merger or consolidation is held by persons who were stockholders of the Bank or the Company immediately before the merger or consolidation;
(2) Acquisition of Significant Share Ownership: A person or persons acting in concert has or have become the beneficial owner of 25% or more of a class of the Bank’s or the Company’s voting securities; provided, however, this clause (2) shall not apply to beneficial ownership of the Bank’s or the Company’s voting shares held in a fiduciary capacity by an entity of which the Bank or the Company directly or indirectly beneficially owns 50% or more of its outstanding voting securities;
(3) Change in Board Composition: Individuals who constitute the Bank’s or the Company’s Board of Directors on the Effective Date hereof (the “Incumbent Board”) cease for any reason to constitute at least a majority thereof, provided that any person becoming a director subsequent to the Effective Date whose election was approved by a vote of at least three-quarters of the directors comprising the Incumbent Board shall be considered, for purposes of this clause (3), as though he or she was a member of the Incumbent Board; or
(4) Sale of Assets: The Bank or the Company sells to a third party all or substantially all of its assets.
The definition of Change of Control shall be construed to be consistent with the requirements of Code Section 409A, and Treasury Regulations promulgated thereunder.
(iii) “Disability” means either (i) disability which after the expiration of more than 13 consecutive weeks after its commencement is determined to be total and permanent by a physician selected and paid for by the Bank or its insurers, and acceptable to the Executive or his legal representative, which consent shall not be unreasonably withheld or (ii) disability as defined in the policy of disability insurance maintained by the Bank or its Affiliates for the benefit of the Executive, whichever may be more favorable to the Executive. Notwithstanding any other provision of this Agreement, the Bank shall comply with all requirements of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
(iv) “For Good Reason” shall mean:
(1) Except as provided herein, the assignment of duties and responsibilities to the Executive by the Bank which are inconsistent with the position referred to in Section 1(a) above or which result in the Executive having significantly less authority, duties or responsibilities than he has on the date hereof, without his prior and express written consent;
(2) The removal of the Executive from or any failure to appoint him to the position of President of the Bank, other than for Cause;
(3) A material reduction by the Bank of the Executive’s annual Base Salary unless salaries for all executive officers are reduced, and the Executive’s salary is reduced proportionately;
(4) A material change (i.e., a relocation of more than 35 miles) in the geographic location of the office at which the Executive is required to provide his primary services without the Executive’s express written consent;
(5) Failure to cure a material breach by the Bank of a material term of this Agreement after 30 days written notice of the breach; or
(6) Failure by any Successor Entity (as defined in Section 13) that assumes the assets or business of the Bank pursuant to an acquisition of any kind including, without limitation, acquisition of assets or merger to assume and agree to perform this Agreement in its entirety.
The Executive is required to provide notice to the Bank of the existence of a condition constituting Good Reason within ninety (90) days of the initial existence of the condition. Upon such notice, the Bank shall have thirty (30) days to remedy the condition. If the condition is remedied within thirty (30) days after notice, then such “Good Reason” shall be deemed not to exist, and the Executive’s notice shall be of no effect. If the condition is not remedied within thirty (30) days after notice to the Bank, then the Executive must resign within ninety (90) days after the expiration of the 30-day remedy period in order to be entitled to the benefits allowed for upon a resignation for “Good Reason.”
(v) “Without Cause” shall mean termination of the Executive’s employment hereunder by the Bank for any reason other than upon Disability or For Cause.
Section 8. Other Provisions Relating to Termination.
(a) Notwithstanding the termination of the Executive’s employment pursuant to any provision of this Agreement, the Parties shall be required to carry out any provisions of this Agreement which contemplate performance by them subsequent to such termination. In addition, no termination shall affect any liability or other obligation of either Party which shall have accrued prior to such termination, including, but not limited to, any liability, loss, or damage on account of breach, subject to the limitation on damages set forth below. No termination of employment shall terminate the obligation of the Bank to make payments of any vested benefits provided hereunder or the obligations of the Executive under Sections 10, 11, and 12.
(b) Notwithstanding anything herein to the contrary, the Executive acknowledges and agrees that the payment by the Bank of the Termination Compensation shall constitute liquidated damages for and shall be the Executive’s sole and exclusive remedy for, (1) the termination of the Executive by the Bank Without Cause or (2) the occurrence of any fact or circumstance constituting Good Reason, including without limitation any breach of this Agreement by the Bank. The parties agree that it would be difficult or impossible to ascertain damages in the event of a breach by the Bank and, accordingly, the parties have, through negotiation of this Agreement, established liquidated damages which they agree are a fair estimate of damages and not a penalty.
(c) It is the intention of the Parties that no payment be made, or benefit provided to the Executive pursuant to this Agreement that would constitute an “excess parachute payment” within the meaning of Section 280G of the Code and any regulations thereunder, thereby resulting in a loss of an income tax deduction by the Bank or the Company, or the imposition of an excise tax on the Executive under Section 4999 of the Code. If the independent accountants serving as auditors for the Bank on the date of a Change of Control (or any other accounting firm designated by the Bank only because such determination by the auditors would be violative of auditor independence rules) determine that some or all of the payments or benefits scheduled under this Agreement, as well as any other payments or benefits on a Change of Control, would be nondeductible by the Bank or the Company under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than the maximum amount which may be paid without causing any such payment or benefit to be nondeductible. The determination made as to the reduction of benefits or payments required hereunder by the independent accountants shall be binding on the Parties. Any reduction of benefits or payments required to be made under this Section 8(c) will be taken pro rata in the following order: first from payments or benefits that are equity compensation and, if necessary, second from payments or benefits that are cash compensation.
(d) Notwithstanding any other provision of this Agreement, no payments or benefits under this Agreement that are subject to Code Section 409A and that are to be paid upon the Executive’s termination of employment shall be paid or provided to the Executive until the Executive has experienced a “separation from service”, as described in Section 20(c). Any such payments or benefits shall also be subject to the delay provisions in Section 20(c), if applicable.
Section 9. Suspension.
If the Executive is suspended and/or temporarily prohibited from participating in the conduct of the Bank’s affairs by a notice served pursuant to the Federal Deposit Insurance Act, then the Bank’s obligations under this Agreement shall be suspended as of the date of service unless the Executive’s suspension or prohibition is stayed by appropriate proceedings. If the charges in the notice are dismissed, then the Bank (i) will pay to the Executive all the compensation withheld while the Bank’s contract obligations were suspended, and (ii) reinstate (in whole) any of its obligations which were suspended. Nothing in this Section 9 shall be construed to limit the Bank’s right, pursuant to Section 7(g)(i)(5) to declare a suspension of the Executive lasting longer than sixty (60) days as Cause for termination.
Section 10. Confidentiality/Nondisclosure.
The Executive covenants and agrees that any and all information concerning the customers, businesses and services of the Bank or the Company of which he has knowledge or access as a result of his association with the Bank or the Company in any capacity (including, without limitation, information concerning the Company’s or the Bank’s trade secrets, business operations and operating methods, business records, customer lists or other customer information, research projects, costs, pricing, financial data, business plans and proposals, data and information the Bank or the Company receives in confidence from any other party and, or any other information which is treated as confidential by the Bank or the Company) (“Confidential Information”) is the sole and exclusive property of the Bank or the Company. The Executive shall not, without the prior written consent of the Bank, directly or indirectly use, disseminate, disclose, or publish such Confidential Information to third parties other than in connection with the usual conduct of the business of the Bank or the Company. Such information shall expressly include, but shall not be limited to, information concerning the Company’s or the Bank’s trade secrets, business operations, business records, customer lists or other customer information. Upon termination of employment, the Executive shall deliver to the Bank all originals and copies of documents, forms, records or other information in Executive’s possession, in whatever form it may exist, concerning the Company, the Bank or their business, customers, products or services, without retaining any copies. The Bank shall have the right to review the Executive’s personal files, on demand, to evaluate compliance with this provision. In construing this provision, it is agreed that it shall be interpreted broadly so as to provide the Company and the Bank with the maximum protection. This Section 10 shall not be applicable to any information which, through no misconduct or negligence of the Executive, has previously or subsequently been disclosed to the public by anyone other than the Executive. The provisions of this Section 10 shall expressly survive termination of this Agreement for any reason, including breach of this Agreement by the Bank or the Company.
Section 11. Covenants Not to Compete and Not to Solicit.
(a) The Executive covenants and agrees that during the term of his employment, and for a period of twelve (12) months from and after the date that the Executive ceases to be employed by the Bank (the “Non-Compete Period”) for any reason other than for Cause, he will not, directly or indirectly, in any individual or representative capacity whatsoever be directly or indirectly employed by a Competitive Business as an employee or consultant, or in any other capacity, to provide or undertake those duties customarily performed by any executive, including a vice-president, or senior loan officer of the Bank anywhere within a thirty-five (35) air mile radius of any office operated by the Bank on the date the Executive’s employment terminates (the “Trade Area”); Additionally, the Executive covenants and agrees that during the term of his employment, and for a period of twelve (12) months from and after the date that the Executive ceases to be employed by the Bank for any reason, during the Non-Compete Period, he will not, directly or indirectly, in any individual or representative capacity whatsoever: (i) solicit, or assist any other person or business entity in soliciting, any depositors or other customers of the Bank to make deposits in or to become customers of any other financial institution conducting a Competitive Business; or (ii) knowingly induce any individuals to terminate their employment with the Bank or its Affiliates. The term “Competitive Business” means provision of those banking products and services that are substantially similar to those offered by the Bank on the date that the Executive’s employment terminates. The Executive further agrees that if the Executive violates this Section 11 during the Non-Compete Period, the Non-Compete Period shall be extended by an amount of time equal to the length of the period of any such violation(s).
(b) The Executive hereby covenants and warrants that the covenants and restrictions set forth in Section 11(a) are the product of negotiation between the Executive and the Bank and, are reasonable (as to geographic scope, scope of activity, and duration) and necessary for the protection of the Bank’s legitimate business interests, including the protection of the significant investment of the Bank in developing, maintaining and expanding its business. The Executive represents and warrants to the Bank and the Company that the covenants and restrictions set forth in Section 11(a) do not and will not unreasonably interfere with the Executive’s ability to earn a livelihood.
Section 12. Injunctive Relief, Damages, Etc.
(a) The Parties agree that in the event of any breach by the Executive of any of the provisions of Section 10 or 11 that monetary damages alone will not adequately compensate the Bank for its losses and, therefore, that it may seek any and all legal or equitable relief available to it, specifically including, but not limited to, injunctive relief. The covenants contained in Sections 10 and 11 shall be construed and interpreted in any judicial proceeding to permit their enforcement to the maximum extent permitted by law. Should a court of competent jurisdiction determine that any provision of the covenants and restrictions set forth in Section 11 is unenforceable as being overbroad as to time, area or scope, then the Parties agree that they shall enter into an amendment to this Agreement for the purpose of rendering such provision enforceable to the maximum extent permitted by law. The Parties acknowledge and agree that the foregoing obligation to amend this Agreement shall survive the entry of any order or decree finding Section 11 to be unenforceable.
(b) Nothing in this Section 12 will limit the right of a Party to obtain from a court of competent jurisdiction any equitable relief such as an injunction, nor shall this Section 12 be construed to impair or otherwise affect any indemnification rights either Party may have against the other arising under the Bank’s articles of incorporation or bylaws or pursuant to any other written agreement between the Parties not superseded by this Agreement.
Section 13. Binding Effect/Assignability. This Agreement shall be binding upon and inure to the benefit of the Bank and the Executive and their respective heirs, legal representatives, executors, administrators, successors, and assigns, but neither this Agreement, nor any of the rights hereunder, shall be assignable by the Executive or any beneficiary or beneficiaries designated by the Executive. The Bank will require any successor entity (whether direct or indirect, by purchase, merger, consolidation, share exchange or otherwise) to all or substantially all the business, stock or assets of the Bank (a “Successor Entity”), by agreement in form and substance reasonably satisfactory to the Executive, to expressly assume and agree to perform this Agreement in its entirety.
Section 14. Governing Law. This Agreement shall be subject to and construed in accordance with the laws of the Commonwealth of Virginia, without giving effect to its principles of conflict of laws.
Section 15. Invalid Provisions. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the validity or enforceability of any other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted.
Section 16. Notices. Any and all notices, designations, consents, offers, acceptance or any other communications provided for herein (“Notices”) shall be given in writing and shall be deemed properly delivered if delivered in person or (i) in the case of Notices deliverable to the Bank, by overnight delivery by a reputable carrier or in person to Corporate Counsel for MainStreet Bank, Edward Crosland, Esq., Partner, Jones Walker LLP, 499 S. Capitol St, SW, Suite #600, Washington DC 20003; FAX # 202-434-4661 , and (ii) in the case of Notices to the Executive, by overnight delivery by a reputable carrier, addressed to his last known address.
Section 17. Entire Agreement.
(a) This Agreement constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes any and all other agreements, either oral or in writing, among the Parties with respect to the subject matter hereof. Upon the execution of this Agreement, the Change in Control Agreement between the Bank and the Executive initially entered into on April 27, 2018 shall be deemed terminated, null and void by the mutual agreement of the Parties hereto.
(b) This Agreement may be executed in one or more counterparts, each of which shall be considered an original copy of this Agreement, but all of which together shall evidence only one agreement.
Section 18. Amendment and Waiver. This Agreement may not be amended except by an instrument in writing signed by or on behalf of each of the Parties. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the person or Party to be charged.
Section 19. Interpretation. The meaning assigned to each term defined in this Agreement will be equally applicable to both the singular and the plural forms of the term. Whenever the context may require, any pronoun will include the corresponding masculine, feminine and neuter forms. The headings in this Agreement are for reference only and will not affect this Agreement’s interpretation. Underscored references to Articles, Sections, Subsections, clauses, Exhibits or Schedules refer to those portions of this Agreement, and any underscored references to a Subsection or clause, unless otherwise identified, refer to the appropriate Subsection or clause within the same Section in which the reference occurs. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, then this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.
Section 20. Code Section 409A Compliance.
(a) The intent of the parties is that payments and benefits under this Agreement comply with Code Section 409A, and applicable guidance thereunder or comply with an exemption from the application of Code Section 409A and, accordingly, all provisions of this Agreement shall be construed in a manner consistent with the requirements for avoiding taxes or penalties under Code Section 409A.
(b) Neither the Executive nor the Bank shall take any action to accelerate or delay the payment of any monies and/or provision of any benefits in any matter which would not be in compliance with Code Section 409A.
(c) A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the form or timing of payment of any amounts or benefits upon or following a termination of employment unless such termination is also a “separation from service” (within the meaning of Code Section 409A) and, for purposes of any such provision of this Agreement under which (and to the extent) deferred compensation subject to Code Section 409A is paid, references to a “termination” or “termination of employment” or like references shall mean separation from service. A “separation from service” shall not occur under Code Section 409A unless such Executive has completely severed his relationship with the Bank, or the Executive has permanently decreased his services to 20% or less of the average level of bona fide services over the immediately preceding 36 month period (or the full period if the Executive has been providing services for less than 36 months). A leave of absence shall only trigger a termination of employment that constitutes a separation from service at the time required under Code Section 409A. If the Executive is deemed on the date of separation from service with the Bank to be a “specified employee”, within the meaning of that term under Code Section 409A(a)(2)(B) and using the identification methodology selected by the Bank from time to time, or if none, the default methodology, then with regard to any payment or benefit that is required to be delayed in compliance with Code Section 409A(a)(2)(B), such payment or benefit shall not be made or provided prior to the earlier of (i) the expiration of the six-month period measured from the date of the Executive’s separation from service or (ii) the date of the Executive’s death. In the case of benefits required to be delayed under Code Section 409A, however, the Executive may pay the cost of benefit coverage, and thereby obtain benefits, during such six-month delay period and then be reimbursed by the Bank thereafter when delayed payments are made pursuant to the next sentence. On the first day of the seventh month following the date of the Executive’s separation from service or, if earlier, on the date of the Executive’s death, all payments delayed pursuant to this Section 20 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein. If any cash payment is delayed under this Section 20, then interest shall be paid on the amount delayed calculated at the prime rate reported in The Wall Street Journal for the date of the Executive’s termination to the date of payment.
(d) With regard to any provision herein that provides for reimbursement of expenses or in-kind benefits subject to Code Section 409A, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit, and (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated with regard to expenses reimbursed under any arrangement covered by Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect. All reimbursements shall be reimbursed in accordance with the Bank’s reimbursement policies but in no event later than the calendar year following the calendar year in which the related expense is incurred.
(e) If under this Agreement, an amount is to be paid in two or more installments, for purposes of Code Section 409A, each installment shall be treated as a separate payment.
(f) When, if ever, a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “payment shall be made within ten (10) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Bank.
(g) Notwithstanding any of the provisions of this Agreement, the Bank shall not be liable to the Executive if any payment or benefit which is to be provided pursuant to this Agreement and which is considered deferred compensation subject to Code Section 409A otherwise fails to comply with, or be exempt from, the requirements of Code Section 409A.
IN WITNESS WHEREOF, the Bank has caused this Agreement to be signed and sealed by its duly authorized officer and the Executive has hereunto set his hand on the day and year first above written.
MAINSTREET BANK
By: /s/ Jeff W. Dick
Name: Jeff W. Dick
Title: Chief Executive Officer
ATTEST: ________________________
EXECUTIVE:
/s/ Abdul Hersiburane
Abdul Hersiburane
WITNESS: ______________________
