EMPLOYMENT AGREEMENT
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Exhibit 10.1
THIS AGREEMENT, dated as of October 15, 2004 (the "Agreement") is by and between American Bank (the "Bank") and Xxxxxxx X. Xxxxxx ("Xx. Xxxxxx").
RECITALS
A. Until March 1, 2004, Xx. Xxxxxx had been serving as the president and chief executive officer of the Bank pursuant to an employment agreement, as amended, dated as of May 1, 1998, the term of which had been twice extended and which terminated in accordance with its terms on March 1, 2004.
B. Since March 1, 2004, Xx. Xxxxxx has continued to serve as the president and chief executive officer of the Bank.
C. The Bank and Xx. Xxxxxx desire to set forth in this Agreement the terms and conditions of his continuing service to the Bank.
NOW, THEREFORE, in consideration of the mutual covenants, promises and agreements contained in this Agreement and for other good and binding consideration the receipt and sufficiency of which is hereby acknowledged, the parties to the Agreement agree as follows:
1. Acceptance. The Bank, by this Agreement, employs Xx. Xxxxxx and Xx. Xxxxxx, by this Agreement, expressly accepts such employment, upon the terms and conditions set forth in this Agreement.
2. Capacity and Term of Employment. Xx. Xxxxxx shall be employed pursuant to this Agreement to serve as president and chief executive officer of the Bank for a term beginning on the date hereof and terminating at 12:00 midnight on March 1, 2005, unless terminated earlier as provided herein or unless extended in writing by both parties hereto (the "Term").
3. Compensation. For all services rendered by Xx. Xxxxxx pursuant to this Agreement, Xx. Xxxxxx shall receive the following compensation:
(a) Salary. Xx. Xxxxxx shall receive an annual base salary of not less than $175,000, or such higher rate as the Board of Directors of the Bank (the "Board") may from time to time determine, payable in accordance with the Bank's applicable payroll policies.
(b) Bonus. In addition to his salary, Xx. Xxxxxx may, at the discretion of the Board and based upon such factors as the Board deems appropriate, receive an annual incentive bonus during the Term, each such bonus to be payable in January as the Board may from time to time determine. Such payments are to be in addition to any payments in accordance with the Bank's 1998 Bonus Plan or such other plans that may be adopted by the Board.
(c) Benefits and Perquisites. Xx. Xxxxxx shall be eligible to participate, fully and on a reasonable basis comparable to other executive officers of the Bank, in any and all bonus, profit participation, stock option, stock purchase, stock appreciation, restricted stock and other incentive or other compensation plans, programs or arrangements heretofore or hereafter adopted or amended by the Bank and all individual or group insurance, retirement, disability, salary continuation and other employee benefit plans, programs or arrangements or any equivalent successor plans, programs or arrangements that may now exist or hereafter be adopted or amended by the Bank (such benefits being referred to collectively as "Employee Benefits" and such plans, programs and arrangements being referred to collectively as "Employee Benefit Plans"), provided, however, that Xx. Xxxxxx'x rights under any Employee Benefit Plans shall be governed by the terms thereof and shall not be created, enlarged or otherwise affected by this Agreement. Nothing in this Agreement shall preclude improvement of reward opportunities for Xx. Xxxxxx in any such Employee Benefits, provided, however, that no such improvement shall in
any way diminish any other obligation of the Bank under this Agreement. Xx. Xxxxxx may receive such other perquisites as he and the Board may from time to time agree upon.
(d) Car Allowance. Xx. Xxxxxx shall have the continued use of the automobile currently owned by the Bank and used by him. Upon prior approval of the Board, Xx. Xxxxxx will receive a monthly car allowance of $500 in place of the use of such automobile.
4. Reimbursement. The Bank shall reimburse Xx. Xxxxxx for all proper out-of-pocket expenses incurred, directly or indirectly, by him in connection with the performance of his duties under this Agreement in accordance with the Bank's expense reimbursement policies.
5. Duties. During the Term, Xx. Xxxxxx agrees to devote his full time and attention to the business of the Bank as shall be required for its efficient management. Xx. Xxxxxx will faithfully perform such duties of the office of President as are required by the By-Laws of the Bank, and shall so perform such other duties as may be entrusted to him by resolution of the Board. During the Term, Xx. Xxxxxx will not be employed by any other entity, or engage in any other services for payment, with the express approval of the Board.
Xx. Xxxxxx may delegate any of his executive or other duties to officers or executives of the Bank whenever such delegation is consistent with safe and sound management of the Bank, and, in the reasonable opinion of Xx. Xxxxxx, necessary to the efficient management and operation of the Bank. Neither such delegation nor any other event or occurrence shall decrease the minimum compensation payable under this Agreement.
6. Termination by Xx. Xxxxxx. Subject to the provisions of Section 8, Xx. Xxxxxx may terminate this Agreement for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
(a) without Xx. Xxxxxx'x written consent, a significant change in the nature or scope of the authorities, powers, functions or duties of Xx. Xxxxxx or the assignment to Xx. Xxxxxx of any duties inconsistent with his positions, duties, responsibilities and status with the Bank, or a change in his reporting responsibilities, titles or offices, or any removal of Xx. Xxxxxx from any of such positions, except: (1) in connection with the termination by the Bank of his employment for Cause or disability; or (2) in connection with the termination by Xx. Xxxxxx of his employment other than for Good Reason; or (3) as a result of his death; or
(b) any purported termination of Xx. Xxxxxx'x employment that is not effected pursuant to a Notice of Termination satisfying the requirements of Section 8 (and for purposes of this Agreement, no such purported termination shall be effective).
7. Termination by the Bank. This Agreement and the employment relationship between Xx. Xxxxxx and the Bank created under this Agreement shall terminate before the expiration of the stated Term, upon the occurrence of any one of the following events:
(a) The death or permanent disability of Xx. Xxxxxx. For the purposes of this Agreement, the "permanent disability" of Xx. Xxxxxx shall be defined as in the Bank's short-term and long-term disability policy; or
(b) Subject to the provisions of Section 8 of this Agreement, the termination by the Bank of Xx. Xxxxxx'x employment for Cause. For the purposes of this Agreement, the Bank shall have "Cause" to terminate Xx. Xxxxxx'x employment under this Agreement upon:
(i) the failure by Xx. Xxxxxx to perform his duties under this Agreement (other than any such failure resulting from Xx. Xxxxxx'x incapacity due to physical or mental illness), after a written demand for performance is delivered to Xx. Xxxxxx by the Board, which
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demand specifically identifies the manner in which the Board believes that Xx. Xxxxxx has not performed his duties;
(ii) the engaging by Xx. Xxxxxx in acts of dishonesty, incompetence, fraud, gross negligence, breach of fiduciary duty involving personal profit, willful misconduct or other gross misconduct injurious to the Bank;
(iii) the violation by Xx. Xxxxxx of any law, rule or regulation (other than traffic violations or similar offenses) or formal or informal enforcement action of any governmental regulatory agency applicable to the Bank or its personnel and injurious to the Bank; or
(iv) the breach of this Agreement by Xx. Xxxxxx.
Notwithstanding the foregoing, Xx. Xxxxxx shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to him a copy of a resolution duly adopted by the affirmative vote of a majority of the entire membership of the Board at a meeting of the Board called and held for the purpose (after reasonable written notice to Xx. Xxxxxx and an opportunity for Xx. Xxxxxx, together with his counsel, to be heard before the Board at such meeting), finding that in the good faith opinion of the Board, Xx. Xxxxxx was guilty of conduct set forth above in any of clauses (i), (ii), (iii) or (iv) of this Section 7(b) and describing such conduct.
8. Notice of Termination. Any termination by the Bank or by Xx. Xxxxxx pursuant to the terms and provisions of this Agreement shall be communicated by written Notice of Termination, as defined in this Agreement, to the other party to this Agreement. For purposes of this Agreement, a "Notice of Termination" shall mean a written notice, given in accordance with the provisions of Section 16 of this Agreement, which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Xx. Xxxxxx'x employment under the provision so indicated.
9. Date of Termination. "Date of Termination" shall mean the date specified in the Notice of Termination, such date not to be earlier than the date on which the Notice of Termination is given.
10. Termination and Severance Payments.
(a) In the event of termination by Xx. Xxxxxx of his employment under this Agreement for Good Reason, or by the Bank other than for Cause or as a result of the death or disability of Xx. Xxxxxx, the Bank shall pay to Xx. Xxxxxx, within thirty business days the following as liquidated damages for his termination or, as the case may be, a severance payment:
(i) continued regular salary payments for 12 months following his termination; and
(ii) Xx. Xxxxxx may exercise any stock options held by him on the Date of Termination, pursuant to the terms of the applicable stock option agreements and plans. Further, the Bank will lend Xx. Xxxxxx the funds to exercise such options upon his written request, stating the amount he wishes to borrow for this purpose, and if all legal requirements applicable to the Bank to lend such funds can be satisfied.
(b) In the event of termination by Xx. Xxxxxx of his employment under this Agreement for Good Reason, or by the Bank other than for Cause or as a result of the death or disability of Xx. Xxxxxx, any and all individual or group health, life, disability, salary continuation and other such plans, programs or arrangements that provide coverage for Xx. Xxxxxx in effect on the Date of Termination shall be continued in full force and effect at no cost to Xx. Xxxxxx for one year from the Date of Termination. In the event it is not possible to continue coverage for Xx. Xxxxxx under such plans, programs or arrangements, the Bank shall provide COBRA coverage for one year from the Date of Termination.
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(c) Notwithstanding any other provision of this Section, if any payments under this Section 10 are described in § 28OG(b)(2)(A)(i) of the Internal Revenue Code of 1986 (the "Code") (relating to payments contingent on changes in the ownership or effective control of a corporation), then the payments under this Agreement shall be limited to the minimum extent necessary to ensure that no payment to Xx. Xxxxxx will be treated as a parachute payment pursuant to § 28OG(b)(2)(A)(ii) of the Code. Furthermore, any payments made to Xx. Xxxxxx pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. § 1828(k) and any regulations promulgated thereunder.
(d) In the event that the Bank terminates Xx. Xxxxxx for Cause or Xx. Xxxxxx terminates his employment other than for Good Reason, no termination or severance payments will be made.
(e) In the event Xx. Xxxxxx'x employment terminates as a result of the end of the Term, Xx. Xxxxxx shall receive the same severance payment as required by section 10(a) and the same benefits required by section 10(b) for his providing consulting services to the Bank as requested by the Board during the twelve-month period following the end of the Term of his employment under this Agreement.
11. Covenants Against Solicitation. Xx. Xxxxxx agrees that following termination of his employment by either party for any reason under this Agreement:
(a) For a period of 24 months after the Date of Termination, Xx. Xxxxxx will not contact or solicit, whether personally or indirectly through agents or representatives, any employee, consultant or service provider of the Bank, any subsidiary of the Bank, any affiliate of the Bank or any parent corporation of the Bank (the "Bank Group") for the purpose of terminating his or her employment, consulting or service providing relationship with any member of the Bank Group. For purposes of this Section 11(a), employee, consultant or service provider shall include any employee, consultant or service provider who has performed any service or other work for any member of the Bank Group, or entered into a written agreement to so perform any such service or other work, at any time within six months prior to the Date of Termination.
(b) For a period of 12 months after the Date of Termination, Xx. Xxxxxx will not contact or solicit, whether personally or indirectly though agents or representatives, any current customer of the Bank Group for the purposes of soliciting, diverting, or taking away or attempting to so solicit, divert or take away from the Bank Group, the banking business of any customer of the Bank Group.
(c) Xx. Xxxxxx agrees to provide a copy, or accurate written summary, of any of these restrictive covenants, still then applicable, to any person, firm, company or corporation from whom he seeks employment if that person, firm, company or corporation is a competitor of any member of the Bank Group.
(d) Xx. Xxxxxx represents to the Bank that the restrictions on his future business opportunities as provided in this Agreement are fair and protect legitimate business interests of the Bank Group. He further represents that, even considering the restrictive covenants in this Agreement, he expects to be able to earn a good and reasonable living from those activities, areas, and opportunities not restricted by this Agreement.
(e) Notwithstanding anything herein contained to the contrary, all terms and conditions of this Section 11 relating to or connected with the performance of any party's duties and obligations subsequent to the Termination Date or the employment relationship under it shall survive any termination of this Agreement or that relationship.
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12. Disputes; Arbitration.
(a) In the event any dispute shall arise between Xx. Xxxxxx and the Bank as to the terms or interpretation of this Agreement, including any action taken by Xx. Xxxxxx to enforce the terms of this Agreement or in defending against any action taken by the Bank, the Bank shall, after a final determination has been made by which Xx. Xxxxxx has prevailed, evidenced by formal legal judgment or settlement, reimburse Xx. Xxxxxx for all costs and expenses, including reasonable attorneys' fees, arising from such dispute, proceedings or actions. Such reimbursement shall be paid within 10 days of Xx. Xxxxxx furnishing to the Bank evidence, which may be in the form, among other things, of a canceled check or receipt, of any costs or expenses Incurred by Xx. Xxxxxx.
(b) The parties agree that they will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith and in a spirit of mutual cooperation. If those attempts fail, then such dispute will be mediated by a mutually-acceptable mediator to be chosen by the parties within 15 business days after written notice by one of the parties demanding mediation. Neither party may unreasonably withhold consent to the selection of the mediator and the parties agree to share the cost of the mediation equally. By mutual agreement, however, the parties may postpone mediation until the parties have completed some specified but limited discovery regarding the dispute. The parties also mutually agree to replace mediation with some other form of alternative dispute resolution ("ADR"), such as neutral fact finding or a mini-trial. If any dispute cannot be resolved by the parties through negotiation, mediation or other form of ADR other than arbitration within 45 days of the date of the initial demand for ADR by one of the parties, then the dispute shall be determined by binding arbitration applying the laws of the State of Maryland. Any arbitration pursuant to this Agreement shall be conducted before the American Arbitration Association in accordance with its arbitration rules. The arbitration shall be final and binding upon all the parties. The arbitrator's award shall not be required to include factual findings or legal conclusions under the doctrines of laches, waiver, or estoppel to adversely affect the rights of either party. Any mediation or other form of ADR shall take place in Silver Spring, Maryland.
13. Regulatory Matters.
(a) If Xx. Xxxxxx is suspended and/or temporarily prohibited from participating in the conduct of the Bank's affairs by a notice served under Section 8(e)(3) or (g)(1) of the Federal Deposit Insurance Act (the "FDIA") (12 U.S.C. 1818(e)(3) and (g)(1)), the Bank's obligations under the 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 Xx. Xxxxxx all of the compensation withheld while its contract obligations were suspended and (ii) reinstate any of its obligations which were suspended.
(b) If Xx. Xxxxxx is removed and/or permanently prohibited from participating in the conduct of the Bank's affairs by an order issued under Sections 8(e) or 8(g)(1) of the FDIA (12 U.S.C. 1818(e) or (g)(1)), all obligations of the Bank under this Agreement shall terminate, as of the effective date of the order, but the vested rights of the parties shall not be affected.
(c) If the Bank is in default (as defined in Section 3(x)(1) of the FDIA), all obligations under the contract shall terminate as of the date of default, but this Section 13(c) shall not affect any vested rights of the contracting parties.
(d) All obligations under this Agreement shall be terminated, except to the extent it is determined that continuation of this Agreement is necessary for the continued operation of the Bank: (i) by the Director of the Office of Thrift Supervision ("OTS"), or his or her designee, at the time that the Federal Deposit Insurance Corporation enters into an agreement to provide
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assistance to or on behalf of the Bank under the authority contained in Section 13(c) of FDIA; or (ii) by the Director of the OTS, or his or her designee, at the time that the Director of the OTS, or his or her designee, approves a supervisory merger to resolve problems related to operation of the Bank or when the Bank is determined by the Director of the OTS to be in an unsafe or unsound condition. Any rights of the parties that have already vested, however, shall not be affected by such action.
14. Breach of Restrictive Covenants.
(a) Notwithstanding any other provision of this Agreement, in the event of breach or threatened breach of the restrictive covenants of this Agreement by Xx. Xxxxxx, the Bank may crease payment of any monthly severance payments to the extent not already paid and Xx. Xxxxxx agrees to repay on demand any such severance compensation previously paid by to him by the Bank hereunder.
(b) Notwithstanding any other provision of this Agreement, in the event of breach or threatened breach of this Agreement by Xx. Xxxxxx, the Bank may also pursue any other remedies available to it for such breach or threatened breach, including recovery of damages from Xx. Xxxxxx.
15. Successors, Assignment and Binding Agreement.
(a) This Agreement shall inure to the benefit of and be enforceable by Xx. Xxxxxx'x personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees.
(b) This Agreement is personal in nature and neither of the parties to this Agreement shall, without the consent of the other, assign, transfer or delegate this Agreement or any rights or obligations under this Agreement except as expressly provided in Section 15(a) of this Agreement. Without limiting the generality of the foregoing, Xx. Xxxxxx'x right to receive payments under this Agreement shall not be assignable or transferable, whether by pledge, creation of a security interest or otherwise, other than by a transfer by his will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer contrary to this Section 15(b), the Bank shall have no liability to pay any amount so attempted to be assigned or transferred.
16. Notice. For all purposes of this Agreement, all communications provided for in this Agreement shall be in writing and shall be deemed to have been duly given when delivered or five business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid, addressed to the Bank at its principal executive office and to Xx. Xxxxxx at his principal residence, or to such other address as any party may have furnished to the other in writing and in accordance with this Agreement, except that notices of change of address shall be effective only upon receipt.
17. Governing Law. This Agreement is made in the State of Maryland and its validity, interpretation, construction and performance shall be governed by the laws of the State of Maryland, without giving effect to the principles of conflict of laws of such State.
18. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by Xx. Xxxxxx and the Bank. No waiver by either party to this Agreement at any time of any breach by the other party to this Agreement or compliance with any condition or provision of this Agreement to be performed by such other party, shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied, with respect to the subject matter of this Agreement have been made by either party that are not set forth expressly in this Agreement.
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19. Severability. Any illegality, invalidity or unenforceability under present or future law of any provision of this Agreement shall not affect the legality, validity or enforceability of any other provision of this Agreement which shall remain in full force and effect.
20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.
21. Withholding of Taxes. The Bank may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as shall be required pursuant to any law or government regulation or ruling.
22. Prior Agreements. Any and all agreements, whether oral or in writing, relating to the subject matter of this Agreement previously entered into between the Bank and Xx. Xxxxxx are, by this Agreement, mutually terminated and canceled, and each of the parties mutually releases and discharges the other from any and all obligations and liabilities whatsoever existing under it by reason of any such agreements, it being the intention of the Bank and Xx. Xxxxxx that this Agreement shall supersede and replace any and all prior agreements, whether oral or in writing, between them.
IN WITNESS WHEREOF, the parties to this Agreement have caused this Agreement to be executed as of the date specified above.
| /s/ XXXXXXX X. XXXXXX Xxxxxxx X. Xxxxxx |
Witness |
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AMERICAN BANK. |
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By: |
/s/ J.R. XXXXXXX, JR. J.R. Xxxxxxx, Jr. |
Witness |
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| Chairman of the Board | |||
[CORPORATE SEAL]
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EMPLOYMENT AGREEMENT
