Exhibit 10.5
SEVERANCE AGREEMENT
This agreement is made this 13th day of May, 1997 by and between FCNB Corp
and FCNB Bank (hereinafter collectively referred to as the "Bank"), and Xxxxxx
X. Xxxxxx (hereinafter referred to as "Executive").
BACKGROUND
Executive is the Executive Vice President, Chief
Operating Officer of the Bank. The current economic and regulatory
climate of the banking industry has resulted in numerous mergers and
acquisitions in the banking community in Maryland. Executive has
expressed concern about the possibilities of a change in control at the
Bank that would result in his loss of employment. To address these
concerns and to secure Executive's continued commitment to the Bank,
the Board of Directors of the Bank have decided to offer this Severance
Agreement to the Executive.
NOW THEREAFTER, in consideration of the premises and covenants
contained herein, the Bank and Executive agree as follows:
1. Definitions.
A. Change in Control of the Bank.
For purposes of this Agreement, a Change in Control of
the Bank shall be deemed to have occurred if:
(i) twenty percent (20%) or more of the voting power
of the Bank is acquired, directly or indirectly, by a person (or group of
persons acting in concert) who do not presently possess such voting power;
(ii) the composition of the Board of Directors of the
Bank changes over a period of time of two consecutive years such that the
members of the Board at the beginning of the two year period no longer
constitute a majority of the Board at the end of the two year period; however,
if a new director is nominated and elected after advance approval by not less
than two-thirds of the directors in office at that time of election, that new
director shall be considered, for purposes of this Agreement, to have been a
director at the beginning of that consecutive two year period; or
(iii) the Bank approves an agreement to merge or
consolidate with or to allow substantially all of its assets to be purchased by
another corporation and as a result of such merger, consolidation or sale of
assets, less than a majority of the outstanding voting stock of the surviving,
resulting or purchasing corporation is owned, immediately after the transaction,
by the holders of the outstanding voting stock of the Bank immediately before
the transaction.
B. Discharge for Cause.
For purposes of this Agreement, discharge for "Cause"
as used herein shall include, without limitation: dishonesty; theft; conviction
of a crime, which is either a (1) felony or (2) misdemeanor involving moral
turpitude or financial impropriety; unethical business conduct; activity which
is contrary to Employer's interests; gross or repeated negligence in carrying
out Executive's duties; or material violation of Executive's obligations.
i. Should Employer deem specific activities contrary
to Employer's interest or that negligence by Executive in carrying out his
duties or any violation of Executive's obligations hereunder has occurred,
written notice of said activity, negligence or violation shall be provided by
Employer to Executive along with a reasonable period of time in which to
correct. Provided that such activity, negligence or violation is neither
dishonest nor criminal,
90 days shall be deemed to be a reasonable time in which to correct such
deficiencies.
(ii) Discharge for "cause" will require a two-thirds
majority vote of the Board, exclusive of Executive. Termination of Executive's
employment for cause shall include termination as an employee, officer and
director of Employer.
C. Resignation for Good Reason.
For purposes of this Agreement, Executive will be deemed
to have resigned for good reason from his employment with the Bank if the
Bank changes, in a manner detrimental to Executive, the compensation or
benefits provided to Executive within one year of a Change in Control of the
Bank or within one year of the detrimental action. A detrimental action will
also include relocation of Executive's principal place of employment by more
than 35 miles from its location immediately prior to the change in Control.
2. Continuation of Executive's Employment. Executive hereby
agrees that he remains an at-will employee of the Bank unless and until there is
a Change in Control of the Bank, at which time the terms of this Agreement take
effect.
3. Severance Benefit. In the event that Executive's employment
with the Bank terminates as a result of a Change in Control of the Bank and
based upon Executive's Resignation for Good Reason (as defined in Paragraph 1(C)
of this Agreement) or for reasons other than Discharge for Cause (as defined in
Paragraph 1(B) of this Agreement), the Bank shall provide the following
severance benefits to Executive:
(i) The Bank shall pay to Executive each month during the
Severance Benefit Period an amount equal to one-twelfth of his annual salary.
Executive's annual salary shall be deemed to be the annual base salary in effect
on January 30 of the year in which the Change in Control
occurred, plus a cash bonus which shall be determined by calculating the average
cash bonus earned for the previous 3 years. The payment shall be paid to the
Executive beginning on the fifteenth (15th) day of the first month following his
termination. The Bank shall withhold such amounts from Executive's severance pay
as required under any applicable federal, state or local law.
(ii) The Bank shall, at its expense, provide to Executive
throughout the Severance Benefit Period, life, medical, health (including dental
and vision), accident and disability insurance and a survivor's income benefit
in form, substance and amount equal to that provided to him before the
commencement of the Severance Benefit Period.
(iii) If Executive's employment terminates at any time
following a Change in Control of the Bank, but such termination is the result of
a Discharge for Cause (as defined in Paragraph 1(B) of this Agreement) or the
result of Executive's voluntary retirement, the Bank shall have no obligation to
pay any severance benefits to Executive.
4. Severance Benefit Period. The Severance Benefit Period shall
begin upon the effective date of Executive's termination from employment as a
result of a Change in Control of the Bank and based upon Executive's Resignation
for Good Reason (as defined in paragraph 1(C) of this Agreement) or for reasons
other than Discharge for Cause (as defined in paragraph 1 (B) of this Agreement)
and shall continue for a period of eighteen (18) months. The Executive, at his
sole discretion, may elect to receive the Severance Benefit in a single lump sum
payment, however benefits (as defined in Section 3, ii) will continue for the
full Benefit Period.
5. Notice Period . Executive agrees that should he resign for
Good Reason from his employment with the Bank, he will provide at least one (1)
month advance notice of his intention to resign. The Bank retains discretion,
however, as to whether Executive's employment shall terminate
immediately upon notification of his intention to resign or at the conclusion of
the one (1) month notice period.
6. Successors and Parties in Interest. This Agreement shall be
binding upon the Bank, its successors and assigns, including without limitation
any entity that acquires, directly or indirectly, by purchase, merger,
consolidation or otherwise, all or substantially all of the business or assets
of the Bank.
7. Rights Under Other Plans. This Agreement is not intended to
reduce, restrict or eliminate any benefit to which Executive may otherwise be
entitled at the time of his termination from employment under any benefit plan
of the Bank then in effect.
8. Conditions Precedent.
(i) Delivery of Signed Agreement. The performance by the
Bank of the obligations imposed upon it by this Agreement is expressly
conditioned upon Executive delivering a signed copy of this Agreement to the
Bank no later than May 30, 1997.
(c) Confidential Information. Executive covenants that, upon
termination, he will return to the Bank, in good order and condition, any and
all books, records, lists and other written, typed, printed, or electronically
stored material, or any other information of any kind deemed by the Bank to be
confidential and/or proprietary, whether furnished by the Bank, or prepared by
Executive, which contains any information relating to the business of the Bank,
and Executive covenants that he has not and will not retain copies of those
materials.
(d) Injunctive Relief. In the event of a breach or
threatened breach by Executive of any of the provisions of this Agreement, and
notwithstanding any other provision in this agreement, Employer, in addition to
any other available rights or remedies, shall be entitled to such
temporary restraining orders and permanent injunctions, as are allowable and
authorized by the laws of the State of Maryland based on the facts of the case,
to restrain such breach by Employee and/or any persons directly or indirectly
acting for or with him. Employee's obligations under this agreement shall remain
binding and enforceable according to its terms notwithstanding expiration or
termination of Employee's employment relationship with the Bank, whether such
termination be voluntary or involuntary.
9. Notices. All notices and other communications required to
be given under this Agreement shall be deemed to have been given or made when
such notice is hand-delivered or when mailed, certified mail, return receipt
requested, to the Bank or Executive, as appropriate, at the following address:
FCNB Bank Xx. Xxxxxx X. Xxxxxx
0000 XXXX Xxxxx 000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
10. Fully-Inclusive Agreement. Executive represents that he
has not relied on any other oral or written representations of any kind made by
any person in reaching this agreement or in signing this document. This document
includes all terms and conditions regarding the severance package being offered
Executive in the event of a Change in Control.
11. Severability. If any provision or any portion of any
provision of this Agreement is held unlawful or unenforceable, the balance of
this Agreement shall nonetheless in all respects remain binding and effective
and shall be construed to be in full force and effect to the extent lawfully
permissible.
12. Miscellaneous. This Agreement embodies the entire Agreement and
understanding between the parties hereto with respect to the subject matters
hereof, and may not be
changed, waived, discharged or terminated unless agreed to by the parties and
only by an instrument in writing signed by both parties. This Agreement will
remain in effect until the earlier of a Change in Control, the Executive's
termination of employment, or until this Agreement is terminated with the
written consent of the parties. The use of any gender, tense or conjugation
includes all gender, tenses and conjugations. This Agreement shall be construed
in accordance with and governed by the laws of the State of Maryland.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written with the intention of making this a document under
seal.
WITNESS:
/s/ XXXXXX X. XXXXXX May 13, 1997
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Xxxxxx X. Xxxxxx Date
EVP & Chief Operating Officer
FCNB Bank
By:/s/ XXXXX XXXX May 13, 1997
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Xxxxx Xxxx Date
Chairman of the Board
FCNB Corp
