exv10w34



 




Exhibit 10.34




EMPLOYMENT AGREEMENT




     THIS EMPLOYMENT AGREEMENT is made and entered into as of the 13th day of
January, 2004 by and between ALLIANCE BANK, a Virginia banking corporation,
hereinafter called the “Bank”, and Frank H. Grace, III hereinafter called
“Employee”, and provides as follows:



RECITALS




     WHEREAS, the Bank is a bank chartered under the laws of the Commonwealth
of Virginia and engaged in the business of banking; and



     WHEREAS, Employee has been involved in the management of the Bank and
possesses managerial experience, knowledge, skills and expertise in such type
of business; and



     WHEREAS, the employment of Employee by the Bank is in the best interests
of the Bank and Employee; and



     WHEREAS, the parties have mutually agreed upon the terms and conditions of
Employee’s continued employment by the Bank as hereinafter set forth;



TERMS OF AGREEMENT




     NOW, THEREFORE, for and in consideration of the premises and of the mutual
promises and undertakings of the parties as hereinafter set forth, the parties
covenant and agree as follows:



     Section 1. Employment. (a) Employee shall be employed as a Senior
Vice President and member of the Senior Management Team of the Bank. He shall
perform such services for the Bank and/or one or more Affiliates as may be
assigned to Employee from time to time upon the terms and conditions
hereinafter set forth.



          (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 Employee performs services. References in
this Agreement to “Affiliate” shall mean any business entity that, directly or
indirectly, through one or more intermediaries, is controlled by or controls
the Bank.



          (c) The parties recognize that the Board of Directors of the Bank shall
manage the business affairs of the Bank and that the relationship between the
Bank and Employee shall be that of an employer and an employee. The Board of
Directors shall have the sole authority to set and establish the hours of
operation of the business and to set and establish reasonable work schedules
and standards applicable to Employee.



 









 





     Section 2. Term. The term of this Agreement shall continue until
March 1, 2004 unless sooner terminated under the terms of this Agreement (the
“Initial Term”). This Agreement shall be renewed automatically for successive
additional terms of one (1) year each unless either party gives the other
notice of nonrenewal at least sixty (60) days prior to the expiration of the
Initial Term or any additional term, as the case may be.



     Section 3. Exclusive Service. Employee shall devote his best
efforts and full time to rendering services on behalf of the Bank in
furtherance of its best interests. Employee shall comply with all policies,
standards and regulations of the Bank now or hereafter promulgated, and shall
perform his duties under this Agreement to the best of his abilities and in
accordance with standards of conduct applicable to chief executive officers of
banks.



     Section 4. Salary. (a) As compensation while employed hereunder,
Employee, during his faithful performance of this Agreement, in whatever
capacity rendered, shall receive an annual base salary of $106,633 payable on
such terms and in such installments as the parties may from time to time
mutually agree upon. The Board of Directors, in its discretion, may increase
Employee’s base salary during the term of this Agreement, but in no event shall
the annual base salary be reduced.



          (b) The Bank shall withhold state and federal income taxes, social
security taxes and such other payroll deductions as may from time to time be
required by law or agreed upon in writing by Employee and the Bank. The Bank
shall also withhold and remit to the proper party any amounts agreed to in
writing by the Bank and Employee for participation in any corporate sponsored
benefit plans for which a contribution is required.



          (c) 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 Employee’s employment by the Bank.



     Section 5. Corporate Benefit Plans. (a) Employee shall be entitled
to participate in or become a participant in any employee benefit plan
maintained by the Bank for which he is or will become eligible on such terms as
the Board of Directors may, in its discretion, establish, modify or otherwise
change.



          (b) The Bank shall provide Employee with a disability insurance policy
providing benefits commensurate with other employees as so amended by the Board
from time to time.



          (c) The Bank shall pay the premiums on group term insurance on the life of
Employee in an amount equal to two times his base salary under a qualified
group benefits plan as secured by the Bank.



     Section 6. Bonuses. Employee shall receive only such bonuses as
the Board of Directors, in its discretion, decides to pay to Employee.



 









 





     Section 7. Expense Account. (a) The Bank shall reimburse Employee
for reasonable and customary 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 membership dues and costs to attend meetings
and conventions of business-appropriate organizations and associations.
Employee agrees to timely submit records and receipts 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 Employee following
receipt and verification of such reports.



          (b) The Bank will provide Employee a car allowance of up to $725 per month
and pay taxes and insurance on such automobile. In addition the Bank will
provide Employee monthly dues for use of the Tower Club and Robert Trent Jones
Golf Club.



     Section 8. Vacation and Sick Leave. Employee shall be entitled to
20 days of vacation and such sick leave as the Board of Directors may from time
to time designate for all full-time employees of the Bank.



     Section 9. Termination. (a) Notwithstanding the termination of
Employee’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. No termination of
employment shall terminate the obligation of the Bank to make payments of any
vested benefits provided hereunder or the obligations of Employee under
Sections 10, 11 and 12.



          (b) Employee’s employment hereunder may be terminated by Employee upon
thirty (30) days written notice to the Bank or at any time by mutual agreement
in writing.



          (c) This Agreement shall terminate upon the death of Employee; provided,
however, that in such event the Bank shall pay to the estate of Employee the
compensation including salary and accrued bonus, if any, which otherwise would
be payable to Employee through the end of the month in which his death occurs.



          (d) The Bank may terminate Employee’s employment other than for “Cause”,
as defined in Section 9(e), at any time upon written notice to Employee, which
termination shall be effective immediately. Employee may resign thirty (30)
days after notice to the Bank for “Good Reason”, as hereafter defined. In the
event the Employee’s employment terminates pursuant to this Section 9(d),
Employee shall receive a monthly amount equal to one-twelfth (1/12) his rate of
annual base salary in effect immediately preceding such termination
(“Termination Compensation”) in each month for twelve (12) months or the
remainder of the term of this Agreement, whichever is greater. Payments of the
Termination Compensation shall be made at the times such payments would have
been made in accordance with Section 4(a). Notwithstanding anything in this
Agreement to the contrary, if Employee breaches Section 10 or 11, Employee will
not thereafter be entitled to receive any further compensation or benefits
pursuant to this Section 9(d). In addition, notwithstanding anything in this
Agreement to the contrary, the Bank shall not be required to make payment of
the Termination Compensation or any



 









 




portion thereof to the extent such payment is prohibited by the terms of the
regulations presently found at 12 C.F.R. part 359 or to the extent that any
other governmental approval of the payment required by law is not received.




     For purposes of this Agreement, “Good Reason” shall mean:



     (i) The assignment of duties to the Employee by the Bank which result in
the Employee having significantly less authority or responsibility than he has
on the date hereof, without his express written consent;



     (ii) The removal of the Employee from his position as Senior Vice
President;



     (iii) A reduction by the Bank of the Employee’s annual base salary (which
shall also constitute a breach of Section 4(a) hereof);



     (iv) The failure of the Bank to obtain the assumption of and agreement to
perform this Agreement by any successor as contemplated in Section 13 hereof.



          (e) The Bank shall have the right to terminate Employee’s employment under
this Agreement at any time for Cause, which termination shall be effective
immediately. Termination for “Cause” shall include termination for one or more
of the following occurring on or after the date of this Agreement: Employee’s
personal dishonesty, incompetence, willful misconduct, breach of a fiduciary
duty involving personal profit, failure to perform stated duties, willful
violation of any law, rule or regulation (other than traffic violations or
similar offenses) or final cease-and-desist order, conviction of a felony or of
a misdemeanor involving moral turpitude, misappropriation of the Bank’s assets
(determined on a reasonable basis) or those of its Affiliates, or material
breach of any other provision of this Agreement. In the event Employee’s
employment under this Agreement is terminated for Cause, Employee shall
thereafter have no right to receive compensation or other benefits under this
Agreement.



          (f) The Bank may terminate Employee’s employment under this Agreement,
after having established the Employee’s disability by giving to Employee
written notice of its intention to terminate his employment for disability and
his employment with the Bank shall terminate effective on the 90th day after
receipt of such notice if within 90 days after such receipt Employee shall fail
to return to the full-time performance of the essential functions of his
position (and if Employee’s disability has been established pursuant to the
definition of “disability” set forth below). For purposes of this Agreement,
“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 Employee 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 Employee,
whichever shall be more favorable to Employee. 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.



 









 





          (g) If Employee 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, the Bank’s obligations under this
Employment Agreement shall be suspended as of the date of service unless stayed
by appropriate proceedings. If the charges in the notice are dismissed, the
Bank may in its discretion (i) pay Employee all or part of the compensation
withheld while its contract obligations were suspended, and (ii) reinstate (in
whole or in part) any of its obligations which were suspended.



          (h) If Employee is removed and/or permanently prohibited from
participating in the conduct of the Bank’s affairs by an order issued under the
Federal Deposit Insurance Act or the Code of Virginia, all obligations of the
Bank under this Employment Agreement shall terminate as of the effective date
of the order, but vested rights of the parties shall not be affected.



          (i)(1) If Employee’s employment is terminated without Cause within one
year after a Change of Control shall have occurred or if he resigns for Good
Reason within one year after a Change in Control shall have occurred, then on
or before Employee’s last day of employment with the Bank, the Bank shall pay
to Employee as compensation for services rendered to the Bank and its
Affiliates a cash amount (subject to any applicable payroll or other taxes
required to be withheld) equal to one and one half year’s base salary;
provided, however, that the Bank may pay said amounts in equal monthly
installments over the eighteen (18) months succeeding the date of termination,
payable on the first day of each such month.



               (2) For purposes of this Agreement, a Change of Control occurs if, after
the date of this Agreement, (i) any person, including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the owner or
beneficial owner of Bank securities having 50% or more of the combined voting
power of the then outstanding Bank securities that may be cast for the election
of the Bank’s directors other than a result of an issuance of securities
initiated by the Bank, or open market purchases approved by the Board of
Directors, as long as the majority of the Board of Directors approving the
purchases is a majority at the time the purchases are made; or (ii) as the
direct or indirect result of, or in connection with, a tender or exchange
offer, a merger or other business combination, a sale of assets, a contested
election of directors, or any combination of these events, the persons who were
directors of the Bank before such events cease to constitute a majority of the
Bank’s Board, or any successor’s board, within two years of the last of such
transactions. For purposes of this Agreement, a Change of Control occurs on
the date on which an event described in (i) or (ii) occurs. If a Change of
Control occurs on account of a series of transactions or events, the Change of
Control occurs on the date of the last of such transactions or events.



     Section 10. Confidentiality/Nondisclosure. Employee covenants and
agrees that any and all information concerning the customers, businesses and
services of the Bank of which he has knowledge or access as a result of his
association with the Bank in any capacity, shall be deemed confidential in
nature and shall not, without the proper written consent of the Bank, be
directly or indirectly used, disseminated, disclosed or published by Employee
to third parties other than in connection with the usual conduct of the
business of the Bank. Such information shall expressly include, but shall not
be limited to, information concerning the Bank’s trade secrets, business
operations, business records, customer lists or other customer information.
Upon termination of



 









 




employment Employee shall deliver to the Bank all originals and copies of
documents, forms, records or other information, in whatever form it may exist,
concerning the Bank or its business, customers, products or services. In
construing this provision it is agreed that it shall be interpreted broadly so
as to provide the Bank with the maximum protection. This Section 10 shall not
be applicable to any information which, through no misconduct or negligence of
Employee, has previously been disclosed to the public by anyone other than
Employee.




     Section 11. Covenant Not to Compete. During the term of this
Agreement and throughout any further period that he is an officer or employee
of the Bank, and for a period of twelve (12) months from and after the date
that Employee is (for any reason) no longer employed by the Bank or for a
period of twelve (12) months from the date of entry by a court of competent
jurisdiction of a final judgment enforcing this covenant in the event of a
breach by Employee, whichever is later, Employee covenants and agrees that he
will not, directly or indirectly, either as a principal, agent, employee,
employer, stockholder, co-partner or in any other individual or representative
capacity whatsoever: (i) engage in a Competitive Business anywhere within a
twenty-five (25) mile radius of any office operated by the Bank as of this
date; or (ii) 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 (iii) induce any individuals to terminate their
employment with the Bank or its Affiliates. As used in this Agreement, the
term “Competitive Business” means all banking and financial products and
services (not including brokerage services) that are substantially similar to
those offered by the Bank on the date that Employee’s employment terminates.



     Section 12. Injunctive Relief, Damages, Etc. Employee agrees that
given the nature of the positions held by Employee with the Bank, that each and
every one of the covenants and restrictions set forth in Sections 10 and 11
above are reasonable in scope, length of time and geographic area and are
necessary for the protection of the significant investment of the Bank in
developing, maintaining and expanding its business. Accordingly, the parties
hereto agree that in the event of any breach by Employee of any of the
provisions of Sections 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 and Employee shall be liable for all damages,
including actual and consequential damages, costs and expenses, including legal
costs and actual attorneys’ fees, incurred by the Bank as a result of taking
action to enforce, or recover for any breach of, Section 10 or Section 11. 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 above is
unenforceable as being overbroad as to time, area or scope, the court may
strike the offending provision or reform such provision to substitute such
other terms as are reasonable to protect the Bank’s legitimate business
interests.



     Section 13. Binding Effect/Assignability. This Employment
Agreement shall be binding upon and inure to the benefit of the Bank and
Employee 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 Employee or any beneficiary or
beneficiaries



 









 




designated by Employee. The Bank will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business, stock or assets of the Bank, by agreement in
form and substance reasonably satisfactory to the Employee, to expressly assume
and agree to perform this Agreement in its entirety. Failure of the Bank to
obtain such agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle the Employee to the
compensation described in Section 9(d). As used in this Agreement, “Bank” shall
mean Alliance Bankshares Bank, a Virginia Bank, and any successor to its
respective business, stock or assets as aforesaid which executes and delivers
the agreement provided for in this Section 13 or which otherwise becomes bound
by all the terms and provisions of this Agreement by operation of law.




     Section 14. Governing Law. This Employment 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. Litigation. In the event of any dispute between the
parties concerning this Agreement, each party shall be responsible for
obtaining counsel at its own expense; however, in the event that the Bank does
not substantially prevail in any litigation arising under this Agreement, the
Bank shall promptly reimburse the Employee for all reasonable attorneys’ fees
and expenses incurred in connection with such litigation.



     Section 16. Invalid Provisions. The invalidity or unenforceability
of any particular provision of this Employment Agreement shall not affect the
validity or enforceability of any other provisions hereof, and this Employment
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.



     Section 17. Notices. Any and all notices, designations, consents,
offers, acceptance or any other communications provided for herein shall be
given in writing and shall be deemed properly delivered if delivered in person
or by registered or certified mail, return receipt requested, addressed in the
case of the Bank to its registered office or in the case of Employee to his
last known address.



     Section 18. Entire Agreement.



          (a) This Employment 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 hereto with
respect to the subject matter hereof.



          (b) This Employment 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 19. Amendment and Waiver. This Employment Agreement may
not be amended except by an instrument in writing signed by or on behalf of
each of the parties hereto. No waiver of any provision of this Employment
Agreement shall be valid unless in writing and signed by the person or party to
be charged.



 









 





     Section 20. Case and Gender. Wherever required by the context of
this Employment Agreement, the singular or plural case and the masculine,
feminine and neuter genders shall be interchangeable.



     Section 21. Captions. The captions used in this Employment
Agreement are intended for descriptive and reference purposes only and are not
intended to affect the meaning of any Section hereunder.



     IN WITNESS WHEREOF, the Bank has caused this Employment Agreement to be
signed by its duly authorized officer and Employee has hereunto set his hand
and seal on the day and year first above written.



	 	 	 
	

	 	ALLIANCE BANK
	 
	 	 
	

	 	By: Thomas A. Young, Jr.
	

	 	Title: President & CEO
	ATTEST:
	 	 
	 
	 	 
	Joyce E. Vanneman
	 	 
	 
	 	 
	

	 	EMPLOYEE
	 
	 	 
	

	 	Frank H. Grace, III (SEAL)
	 
	 	 
	ATTEST:
	 	 
	 
	 	 
	Joyce E. Vanneman
	 	 







 









 





AMENDMENT TO EMPLOYMENT AGREEMENT




     THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made and entered into as of the
27th day of February, 2004 by and between ALLIANCE BANK, a Virginia banking
corporation, hereinafter called the “Bank”, and FRANK H. GRACE, III,
hereinafter called “Employee”, and provides as follows:



RECITALS




     WHEREAS, the Bank and Employee entered into an Employment Agreement as of
January 13, 2004; and



     WHEREAS, the Bank and Employee both wish to amend the terms of said
agreement as set forth herein; and



     WHEREAS, the Bank and Employee both acknowledge the mutual benefit
received by both Bank and Employee regarding this Amendment.



TERMS OF AMENDMENT TO EMPLOYMENT AGREEMENT




     NOW, THEREFORE, for and in consideration of the premises and the mutual
promises and undertakings of the parties as herein set forth, the parties
covenant and agree as follows:



     Section 1. Acknowledgment of Employment Agreement. Bank and
Employee acknowledge the Employment Agreement between Bank and Employee dated
as of January 13, 2004, and Bank and Employee specifically acknowledge and
reaffirm the terms of said Employment Agreement and covenant and agree that,
except as set forth herein, the terms of the Employment Agreement remain fully
enforceable and valid as the obligation of both Bank and Employee.



     Section 2. Terms of Amendment. Bank and Employee agree that Bank
shall provide as an additional benefit to Employee, in recognition of the
mutual benefit to Bank and Employee, a membership in the Robert Trent Jones
Golf Course. The membership shall be purchased by the Employee in his own
name. The terms of the loan shall be as agreed between the Employee and the
Bank and shall be on the same terms and conditions as loans prevailing at the
same time for comparable loans with unrelated persons and consistent with all
applicable regulatory requirements. The loan must be repaid in five (5) years
or less, and may be repaid from future bonuses received by Mr. Grace at the
discretion of the Bank.



          (a) In years in which the Employee’s annual incentive award is at least
$30,000, the Bank shall deduct $11,000 from the incentive compensation and
match an additional $11,000 to that incentive compensation, resulting in a
total amount of $22,000, which amount shall be applied first to interest, then
to principal. (By way of example, if the Employee earns an incentive award of
$40,000 for a given year, $11,000 will be deducted therefrom and the Employee
shall be paid a net incentive award of $29,000, with the $11,000 deducted
matched



 









 




by the Bank in the additional amount of $11,000, for a total amount of $22,000
applied to interest and principal.)




          (b) In any year during which the Employee does not earn an incentive award
equal to or greater than $30,000, a total of up to $11,000, but not exceeding
the amount of the total incentive award, shall be deducted from the employee’s
annual incentive award and applied to interest and principal, with no matching
award provided by the Bank.



          (c) If Employee resigns from the Bank, Employee is responsible for the
repayment of the remaining balance of the loan including principal and
interest.



          (d) In the event of a “Change in Control”, as that term is defined under
the Employment Agreement, if Employee stays with the Bank, the terms set forth
in subparagraph (a) above remain in effect. If, however, Employee leaves the
Bank for “Good Reason” as that term is defined in the Employment Agreement, the
Bank shall pay to Employee an additional severance payment in an amount equal
to one-half of the outstanding loan balance.



          (e) The Bank will obtain a term life insurance policy in the amount of
$95,000 for five years, with a declining balance as appropriate, in the name of
the Employee with the Bank as beneficiary, to secure the repayment obligation
in the event of Employee’s death. The cost of the policy to be borne by the
Bank.



     IN WITNESS WHEREOF, the Bank has caused the Amendment to Employment
Agreement to be signed by its duly authorized officer and Employee has hereunto
set his hand and seal on the day and year first above written.



	 	 	 
	

	 	ALLIANCE BANK
	 
	 	 
	

	 	By: Thomas A. Young, Jr.
	

	 	Title: President & CEO
	 
	 	 
	ATTEST:
	 	 
	 
	 	 
	Joyce E. Vanneman
	 	 
	 
	 	 
	

	 	EMPLOYEE
	 
	 	 
	

	 	Frank H. Grace, III (SEAL)
	 
	 	 
	ATTEST:
	 	 
	Joyce E. Vanneman