EXHIBIT 10.3
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 5th day of January, 2004 ("Commencement Date"), by and between EagleBank, a
Maryland corporation ("Eagle"), and Xxxxxx X. Xxxxxx ("Xxxxxx").
RECITAL
Eagle desires to retain Xxxxxx as the Executive Vice President and Chief
Operating Officer of Eagle and Xxxxxx desires to accept such employment, all
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the recital, the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement, intending to be legally bound, agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
1.1 "Commencement Date" means the date first written above.
1.2 "Bank Regulatory Agency" means any governmental authority,
regulatory agency, ministry, department, statutory
corporation, central bank or other body of the United States
or of any other country or of any state or other political
subdivision of any of them having jurisdiction over Eagle or
any transaction contemplated, undertaken or proposed to be
undertaken by Eagle, including, but not necessarily limited
to:
(a) the Federal Deposit Insurance Corporation or any other
federal or state depository insurance organization or fund;
(b) the Federal Reserve System, the Comptroller of the
Currency, the Maryland Division of Financial Institutions, or
any other federal or state bank regulatory or commissioner's
office;
(c) any Person established, organized, owned (in whole or in
part) or controlled by any of the foregoing; and
(d) any predecessor, successor or assignee of any of the
foregoing.
1.3 "Board" means the Board of Directors of Eagle.
1.4 "Bylaws" means the Bylaws of Eagle as in effect from time
to time.
1.5 "EBI" means Eagle Bancorp, Inc., a Maryland corporation
1.6 "Person" means any individual, firm, association,
partnership, corporation, limited liability company,
group, governmental agency or other authority, or other
organization or entity.
1.7 "President" means the President and Chief Executive
Officer of Eagle.
2. Employment; Term.
2.1 Position. Eagle hereby employs Xxxxxx to serve as the
Executive Vice President and Chief Operating Officer of Eagle.
Xxxxxx shall also be a member of the Board, subject to
election by EBI in accordance with the Bylaws of EBI and
Eagle.
2.2 Term. The term of this Agreement and Xxxxxx'x employment
hereunder shall commence with the Commencement Date and
continue until December 31, 2006 (the "Term"), unless sooner
terminated in accordance with the provisions of this
Agreement.
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3. Duties of Xxxxxx.
3.1 Nature and Substance. Xxxxxx shall report directly to the
President and shall be under the direction of the President.
The specific powers and duties of Xxxxxx shall be established,
determined and modified by and within the discretion of the
Board, including (but not necessarily be limited to):
(a) the opening, closing, oversight and administration of all
branch functions;
(b) the provision of such reports, updates and other data and
information as may be reasonably required by Eagle and Bank
Regulatory Agencies;
(c) subject to guidelines and/or criteria established by
Eagle, the hiring, promotion, supervision, retention and
discharge of all employees, except for executive officers of
Eagle at or above the level of Executive Vice President;
(d) the formulation and implementation of employee personnel
policies and benefits, subject to approval by the Board;
(e) the promotion of the reputation and business of Eagle
within the community;
(f) the advancement of the business purposes of Eagle,
including, but not limited to, business development and
customer, depositor and public relations;
(g) participation in and service upon such committees and
subcommittees as may be directed by the Board, without
additional compensation to that set forth herein below;
(h) such other duties of the Executive Vice President and
Chief Operating Officer as may be enumerated in the Bylaws;
and
(i) such other duties and responsibilities as are normally
incident to the position of Executive Vice President and Chief
Operating Officer, including assisting, directing and/or
supervising the operations and other employees of Eagle upon
such terms, conditions, rules, policies and regulations as may
be established by the Board from time to time.
3.2 Performance of Services. Xxxxxx agrees to devote his full
business time and attention to the performance of his duties
and responsibilities under this Agreement, and shall use his
best efforts and discharge his duties to the best of his
ability for and on behalf of Eagle and toward its successful
operation. Xxxxxx shall comply with all laws, statutes,
ordinances, rules and regulations relating to his employment
and duties. During the Term of this Agreement, Xxxxxx shall
not at any time or place directly or indirectly engage or
agree to engage in any business or practice related to the
banking business with or for any other Person to any extent
whatsoever, other than to the extent required by the terms and
conditions of this Agreement. Xxxxxx agrees that while
employed by Eagle he will not, without the prior written
consent of the Board, engage, or obtain a financial or
ownership interest, in any other business, employment,
consulting or similar arrangement, or other undertaking (an
"Outside Arrangement") if such Outside Arrangement would
interfere with the satisfactory performance of Xxxxxx'x duties
to Eagle, present a conflict of interest with Eagle and/or
EBI, breach Xxxxxx'x duty of loyalty or fiduciary duties to
Eagle and/or EBI, or otherwise conflict with the provisions of
this Agreement; provided, however, that Xxxxxx shall not be
prevented from investing Xxxxxx'x assets in such form or
manner as would not require any services on the part of Xxxxxx
in the operation or the affairs of the entities in which such
investments are made and provided such investments do not
present a conflict of interest with Eagle and/or EBI. Xxxxxx
shall promptly notify the Board of any Outside Arrangement and
provide Eagle with any written agreement in connection
therewith.
4. Compensation and Benefits. As full compensation for all
services rendered pursuant to this Agreement and the covenants
contained herein, Eagle shall pay to Xxxxxx the following:
4.1 Salary. Beginning on the Commencement Date, Xxxxxx shall
be paid a salary ("Salary") One Hundred Eighty Two Thousand
Five Hundred Dollars ($182,500.00) on an annualized basis.
Effective January 1,
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2004, Xxxxxx'x Salary shall be One Hundred Ninety Six Thousand
Two Hundred Fifty Dollars ($196,250.00) on an annualized
basis. Eagle shall pay Xxxxxx'x Salary in equal installments
in accordance with Eagle's regular payroll periods as may be
set by Eagle from time to time. Xxxxxx'x Salary shall be
further increased from time to time at the discretion of the
Board.
4.2 Bonus. During the Term, Xxxxxx may be paid a bonus ("COO
Bonus") as approved by the Benefits Committee and the Board.
4.3 Withholding. Payments of Salary and COO Bonus shall be
subject to the customary withholding of income and other
employment taxes as is required with respect to compensation
paid by an employer to an employee.
4.4 Vacation and Leave. Xxxxxx shall be entitled to such
vacation and leave as may be provided for under the current
and future leave and vacation policies of Eagle for executive
officers.
4.5 Office Space. Eagle will provide customary office space
and office support to Xxxxxx beginning on the Commencement
Date.
4.6 Car Allowance. Eagle will pay Xxxxxx a monthly car
allowance of Six Hundred Fifty Dollars ($650.00).
4.7 Non-Life Insurance. Eagle will provide Xxxxxx with group
health, disability and other insurance as Eagle may determine
appropriate for all employees of Eagle.
4.8 Life Insurance.
4.8.1 Eagle will obtain, and maintain at all times while this
Agreement is in effect, a term life insurance policy (the
"Policy") on Xxxxxx in the amount of Six Hundred Thousand
($600,000.00), the particular product and carrier to be chosen
by Eagle in its discretion. Xxxxxx shall have the right to
designate the beneficiary of the Policy. Eagle will pay the
premium for the Policy. In the event Xxxxxx is rated and the
premium exceeds the standard rate, the Policy amount shall be
lowered to the maximum amount that can be purchased at the
standard rate for a Six Hundred Thousand ($600,000.00) policy.
For example, if Xxxxxx is rated and the standard rate for a
Six Hundred Thousand ($600,000.00) policy would acquire a Five
Hundred Thousand ($500,000.00) policy, Eagle would only be
required to purchase the Five Hundred Thousand ($500,000.00)
policy.
4.8.2 Eagle may, at its cost, obtain and maintain "key-man"
life insurance and/or Bank-owned life insurance on Xxxxxx in
such amount as determined by the Board from time to time.
Xxxxxx agrees to cooperate fully and to take all actions
reasonably required by Eagle in connection with such
insurance.
4.9 Expenses. Eagle shall promptly upon presentation of proper
expense reports therefor reimburse Xxxxxx, in accordance with
the policies and procedures established from time to time by
Eagle for its senior executive officers, for all reasonable
and customary travel (other than local use of an automobile
for which Xxxxxx is being provided the car allowance) and
other out-of-pocket expenses incurred by Xxxxxx in the
performance of his duties and responsibilities under this
Agreement and promoting the business of Eagle, including
appropriate membership fees, dues and the cost of attending
meetings and conventions.
4.10 Retirement Plans. Xxxxxx shall be entitled to participate
in any and all qualified pension or other retirement plans of
Eagle which may be applicable to executive personnel of Eagle.
4.11 Warrants. Xxxxxx shall be issued warrants or options to
acquire shares of EBI stock from time to time at the
discretion of the Board of Directors of EBI following a
recommendation by the Board. In that regard, it is
acknowledged that concurrent with the execution of this
Agreement Xxxxxx will be granted stock options for five
thousand (5,000) shares in accordance with the EBI 1998 Stock
Option Plan under a vesting schedule as determined by EBI.
Additional options may be granted during the term of this
Agreement.
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4.12 Other Benefits. While this Agreement is in effect, Xxxxxx
shall be entitled to all other benefits that Eagle provides
from time to time to its senior executive officers, including,
but not limited to, any stock option plan and other incentive
plans.
4.13 Eligibility. Participation in any health, life, accident,
disability, medical expense or similar insurance plan or any
qualified pension or other retirement plan shall be subject to
the terms and conditions contained in such plan. All matters
of eligibility for benefits under any insurance plans shall be
determined in accordance with the provisions of the applicable
insurance policy issued by the applicable insurance company.
5. Conditions Subsequent to Continued Operation and Effect of
Agreement.
5.1 Continued Approval by Bank Regulatory Agencies. This
Agreement and all of its terms and conditions, and the
continued operation and effect of this Agreement and Eagle's
continuing obligations hereunder, shall at all times be
subject to the continuing approval of any and all Bank
Regulatory Agencies whose approval is a necessary prerequisite
to the continued operation of Eagle. Should any term or
condition of this Agreement, upon review by any Bank
Regulatory Agency, be found to violate or not be in compliance
with any then-applicable statute or any rule, regulation,
order or understanding promulgated by any Bank Regulatory
Agency, or should any term or condition required to be
included herein by any such Bank Regulatory Agency be absent,
this Agreement may be rescinded and terminated by Eagle if the
parties hereto cannot in good faith agree upon such additions,
deletions, or modifications as may be deemed necessary or
appropriate to bring this Agreement into compliance.
6. Termination of Agreement. This Agreement may be terminated
prior to expiration of the Term as provided below.
6.1 Definition of Cause. For purposes of this Agreement,
"Cause" means:
(a) any act of theft, fraud, intentional
misrepresentation or similar conduct by Xxxxxx in
connection with or associated with the services
rendered by Xxxxxx to Eagle under this Agreement;
(b) any failure of this Agreement to comply with any
Bank Regulatory Agency requirement which is not cured
in accordance with Section 5.1 within a reasonable
period of time after written notice thereof;
(c) any Bank Regulatory Agency action or proceeding
against Xxxxxx as a result of his negligence, fraud,
malfeasance or misconduct;
(d) material failure of Eagle to achieve budget
requirements, performance standards or targets
established annually by the Board, where such failure
is not the result of economic conditions or lack of
appropriate effort and/or due diligence by Xxxxxx; or
(e) any of the following conduct on the part of
Xxxxxx that Xxxxxx has not been corrected or cured
within thirty (30) days after having received written
notice from Eagle detailing and describing such
conduct:
(i) the use of drugs, alcohol or other
substances by Xxxxxx to an extent
which materially interferes with or
prevents Xxxxxx from performing
Xxxxxx'x duties under this Agreement;
(ii) failure by or the inability of Xxxxxx
to devote full time, attention and
energy to the performance of Xxxxxx'x
duties pursuant to this Agreement
(other than by reason of his death or
disability);
(iii)intentional material failure by Xxxxxx
to carry out the explicit lawful and
reasonable directions, instructions,
policies, rules, regulations or
decisions of the Board which are
consistent with his position as
Executive Vice President and Chief
Operating Officer; or
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(iv) willful or intentional misconduct on
the part of Xxxxxx that results in
substantial injury to Eagle or any of
its parent, subsidiaries or
affiliates.
6.2 Termination by Eagle.
6.2.1 For Cause. Eagle shall have the right to cancel
and terminate this Agreement and Xxxxxx'x employment
for Cause immediately on written notice, with
Xxxxxx'x compensation and benefits ceasing as of
Xxxxxx'x last day of employment, provided, however,
that Xxxxxx shall be entitled to benefits through the
last day of employment and accrued compensation to
that date.
6.2.2 Without Cause. Eagle shall have the right to
cancel and terminate this Agreement and Xxxxxx'x
employment at any time on written notice without
Cause for any or no reason, with Xxxxxx'x
compensation and benefits ceasing as of Xxxxxx'x last
day of employment, subject to the provisions of
Section 6.4. and Article 8.
6.3 Termination by Xxxxxx. Xxxxxx shall have the right to
cancel and terminate this Agreement and his employment at any
time on sixty (60) days prior written notice to the Board,
with Xxxxxx'x compensation and benefits ceasing as of Xxxxxx'x
last day of employment, provided, however, that Xxxxxx shall
be entitled to benefits through the last day of employment and
accrued compensation to that date.
6.4 Severance. Except as set forth below, if Xxxxxx'x
employment with Eagle is terminated by Eagle or its successors
during the Term without Cause, Eagle shall, for the balance of
the Term, continue to pay Xxxxxx, in the manner set forth
below, Xxxxxx'x Salary at the rate being paid as of the date
of termination plus the unpaid portion of any COO Bonus
previously approved as provided in Section 4.2; provided,
however, that Xxxxxx not be entitled to any such payments of
Salary if (i) his employment is terminated due to his death or
long-term disability, or (ii) this Agreement is rendered null
and void pursuant to Section 5.1, or (iii) there is a Change
in Control Termination (as defined in Section 8.2). Any Salary
and COO Bonus due Xxxxxx pursuant to this Section 6.4 shall be
paid to Xxxxxx in installments on the same schedule as Xxxxxx
was paid immediately prior to the date of termination, each
installment to be the same amount Xxxxxx would have been paid
under this Agreement if he had not been terminated. In the
event Xxxxxx breaches any provision of Article 7 of this
Agreement, Xxxxxx'x entitlement to any Salary or COO Bonus
payable pursuant to this Section 6.4, if and to the extent not
yet paid, shall thereupon immediately cease and terminate.
7. Confidentiality; Non-Competition; Non-Interference.
7.1 Confidential Information. Xxxxxx, during employment by
Eagle, will have access to and become familiar with various
confidential and proprietary information of Eagle, its parent,
subsidiaries and/or affiliates and/or relating to the business
of Eagle, its parent, subsidiaries and/or affiliates
("Confidential Information"), including, but not limited to:
business plans; operating results; financial statements and
financial information; contracts; mailing lists; purchasing
information; customer data (including lists, names and
requirements); feasibility studies; personnel related
information (including compensation, compensation plans, and
staffing plans); internal working documents and
communications; and other materials related to the businesses
or activities of Eagle, its parent, subsidiaries and/or
affiliates which is made available only to employees with a
need to know or which is not generally made available to the
public. Failure to xxxx any Confidential Information as
confidential, proprietary or protected information shall not
affect its status as part of the Confidential Information
subject to the terms of this Agreement.
7.2 Nondisclosure. Xxxxxx hereby covenants and agrees that
Xxxxxx shall not at any time, directly or indirectly,
disclose, divulge, reveal, report, publish, or transfer any
Confidential Information to any Person, or use Confidential
Information in any way or for any purpose, except as required
in the course of Xxxxxx'x employment by Eagle. The covenant
set forth in this Section 7.2 shall not apply to information
now known by the public or which becomes known generally to
the public (other than as a result of a breach of this Article
7 by Xxxxxx) or information that is customarily shown or
disclosed. Xxxxxx further covenants and agrees that Xxxxxx
shall not at any time, directly or indirectly, disclose to any
Person, including but not limited to any other employee of EBI
or Eagle, any of the terms of this Agreement.
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7.3 Documents. All files, papers, records, documents,
compilations, summaries, lists, reports, notes, databases,
tapes, sketches, drawings, memoranda, and similar items
(collectively, "Documents"), whether prepared by Xxxxxx, or
otherwise provided to or coming into the possession of Xxxxxx,
that contain any proprietary information about or pertaining
or relating to Eagle, its parent, subsidiaries and/or
affiliates and/or their businesses ("Eagle Information") shall
at all times remain their exclusive property. Promptly after a
request by Eagle or the termination of Xxxxxx'x employment,
Xxxxxx shall take reasonable efforts to (i) return to Eagle
all Documents in any tangible form (whether originals, copies
or reproductions) and all computer disks containing or
embodying any Document or Eagle Information and (ii) purge and
destroy all Documents and Eagle Information in any intangible
form (including computerized, digital or other electronic
format) as may be requested in writing by the Chairman of the
Board of Eagle, and Xxxxxx shall not retain in any tangible
form any such Document or any summary, compilation, synopsis
or abstract of any Document or Eagle Information.
7.4 Non-Competition.
7.4.1 Xxxxxx hereby acknowledges and agrees that,
during the course of employment by Eagle, Xxxxxx will
become familiar with and involved in all aspects of
the business and operations of Eagle. Xxxxxx hereby
covenants and agrees that from the Commencement Date
until the earlier to occur of (a) the date one
hundred eighty (180) days after Xxxxxx'x last day of
employment with Eagle or (b) December 31, 2006,
Xxxxxx will not at any time (except for Eagle),
directly or indirectly, in any capacity (whether as a
proprietor, owner, agent, officer, director,
shareholder, partner, principal, member, employee,
contractor, consultant or otherwise) render any
services to a bank or savings and loan or a holding
company of a bank or savings and loan (in any case, a
"Bank") with respect to any Bank office, branch or
other facility (in any case, a "Branch") that is
located within a thirty-five (35) mile radius of the
location of Eagle's headquarters on the date hereof
(including, without limitation, being involved in any
manner in the operations of or having any
responsibilities with respect to any Branch).
7.4.2 This Section 7.4 shall not apply if prior to
December 31, 2006, there is a (i) merger or
consolidation of Eagle with a third party in which
Eagle is not the survivor, (ii) sale of a controlling
interest in Eagle to a third party or (iii) a sale of
all or substantially all of the business or assets of
Eagle to a third party, and this Agreement is not
assigned to such third party or Xxxxxx'x employment
hereunder is otherwise terminated by such third party
in connection with such merger, consolidation or
sale. Further, mere ownership of less than two
percent (2%) of the securities of any publicly held
corporation shall not constitute a violation of this
Section.
7.5 Non-Interference. Xxxxxx hereby covenants and agrees that
during his employment, and for a period of twelve (12) months
after Xxxxxx'x last date of employment with Eagle, Xxxxxx will
not, directly or indirectly, for himself or any other Person
(whether as a proprietor, owner, agent, officer, director,
shareholder, partner, principal, member, employee, contractor,
consultant or any other capacity), induce or attempt to induce
any customers, suppliers, officers, employees, contractors,
consultants, agents or representatives of, or any other person
that has a business relationship with, Eagle or any of its
parent, subsidiaries and affiliates to discontinue, terminate
or reduce the extent of their relationship with Eagle and/or
any such parent, subsidiary or affiliate or to take any action
that would disrupt or otherwise be disadvantageous to any such
relationship, nor xxxx Xxxxxx otherwise solicit any customer
or employee of Eagle on behalf of himself or any other Person
or entity.
7.6 Injunction. In the event of any breach or threatened or
attempted breach of any such provision by Xxxxxx, Eagle shall,
in addition to and not to the exclusion of any other rights
and remedies at law or in equity, be entitled to seek and
receive from any court of competent jurisdiction (i) full
temporary and permanent injunctive relief enjoining and
restraining Xxxxxx and each and every other Person concerned
therein from the continuation of such volatile acts and (ii) a
decree for specific performance of the applicable provisions
of this Agreement, without being required to furnish any bond
or other security.
7.7 Reasonableness.
7.7.1 Xxxxxx has carefully read and considered the
provisions of this Article 7 and, having done so,
agrees that the restrictions and agreements set forth
in this Article 7 are fair and reasonable and are
reasonably required for the protection of the
interests of Eagle and its business, shareholders,
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directors, officers and employees. Xxxxxx further
agrees that the restrictions set forth in this
Agreement will not impair or unreasonably restrain
Xxxxxx'x ability to earn a livelihood.
7.7.2 If any court of competent jurisdiction should
determine that the duration, geographical area or
scope of any provision or restriction' set forth in
this Article 7 exceeds the maximum duration,
geographic area or scope that is reasonable and
enforceable under applicable law, the parties agree
that said provision shall automatically be modified
and shall be deemed to extend only over the maximum
duration, geographical area and/or scope as to which
such provision or restriction said court determines
to be valid and enforceable under applicable law,
which determination the parties direct the court to
make, and the parties agree to be bound by such
modified provision or restriction.
8. Change in Control.
8.1 Definition. "Change in Control" means and shall be
deemed to have occurred if:
(a) there shall be consummated any consolidation or merger of
EBI in which EBI is not the continuing or surviving
corporation or pursuant to which shares of EBI's capital stock
are converted into cash, securities or other property other
than a consolidation or merger of EBI in which the holders of
EBI's voting stock immediately before the consolidation or
merger shall, upon consummation of the consolidation or
merger, own at least 50% of the voting stock of the surviving
corporation, or any sale of all or substantially all of the
assets of EBI;
(b) any person (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) shall after the Commencement Date become
the beneficial owner (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of
securities of EBI representing fifty-one percent (51%) or more
of the voting power of then all outstanding securities of EBI
entitled to vote generally in the election of directors of EBI
(including, without limitation, any securities of EBI that any
such person has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, which shall be deemed beneficially
owned by such person); or
(c) individuals who at the Commencement Date constitute the
entire Board of Directors of EBI and any new directors whose
election by the Board of Directors of EBI, or whose nomination
for election by EBI's stockholders, shall have been approved
by a vote of at least a majority of the directors then in
office who either were directors at the Commencement Date or
whose election or nomination for election shall have been so
approved, shall cease for any reason to constitute at least a
majority of the Board of Directors of EBI.
8.2 Change in Control Termination. For purposes of this
Agreement, a "Change in Control Termination" means that while
this Agreement is in effect:
(a) Xxxxxx'x employment with Eagle is terminated without Cause
within one hundred twenty (120) days immediately (i) prior to
and in conjunction with a Change in Control or (ii) following
consummation of a Change in Control; or
(b) Xxxxxx is notified within one hundred twenty (120) days
immediately prior to or immediately following consummation of
a Change in Control that, as a result of the Change in
Control, he will not be continued in a comparable position
(with comparable compensation and benefits) with Eagle to the
position Xxxxxx holds at the time such notice is given if the
notice is given prior to the Change in Control or, if the
notice is given after a Change in Control, to the position
Xxxxxx held immediately prior to the Change in Control, and
within fifteen (15) days after receiving such notification
Xxxxxx notifies Eagle that he is terminating his employment
due to such change in his employment, with his last day of
employment to be mutually agreed to by Eagle and Xxxxxx but
which shall be not more than sixty (60) days after such notice
is given by Xxxxxx; or
(c) If at the expiration of the one hundred twenty (120) day
period immediately following consummation of a Change in
Control (the "Action Period") none of the events described in
Sections 8.2(a) and 8.2(b) above have occurred, Xxxxxx, within
the thirty (30) day period immediately following the last day
of the
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Action Period, notifies Eagle that he is terminating his
employment due to the Change in Control, with his last day of
employment to be mutually agreed to by Eagle and Xxxxxx but
which shall be not more than sixty (60) days after such notice
is given by Xxxxxx.
8.3 Change in Control Payment. If there is a Change in Control
Termination, Xxxxxx shall be paid a lump-sum cash payment (the
"Change Payment") equal to 2.99 times Xxxxxx'x Salary at the
highest rate in effect during the twelve (12) month period
immediately preceding his last day of employment, such Change
Payment to be made to Xxxxxx within forty-five (45) days after
his last day of employment.
8.4 Adjustment.
(a) Notwithstanding anything in this Agreement to the
contrary, if the Determining Firm (as defined in Section
8.4(b)) determines that any portion of the Change Payment
and/or the portions, if any, of other payments or
distributions in the nature of compensation by Eagle to or for
the benefit of Xxxxxx (including, but not limited to, the
value of the acceleration in vesting of restricted stock,
options or any other stock-based compensation) whether or not
paid or payable or distributed or distributable pursuant to
the terms of this Agreement (collectively with the Change
Payment, the "Aggregate Payment"), would cause any portion of
the Aggregate Payment to be subject to the excise tax imposed
by Code Section 4999 or would be nondeductible by Eagle
pursuant to Code Section 280G (such portion subject to the
excise tax or being nondeductible, the "Parachute Payment"),
the Aggregate Payment will be reduced, beginning with the
Change Payment, to an amount which will not cause any portion
of the Aggregate Payment to constitute a Parachute Payment.
(b) All determinations required to be made under this Section
8.4, will be made by a reputable law or accounting firm (the
"Determining Firm") selected by Eagle. All fees and expenses
of the Determining Firm will be obligations solely of Eagle.
The determination of the Determining Firm will be binding upon
Eagle and Xxxxxx.
9. Assignability. Xxxxxx shall have no right to assign this Agreement
or any of Xxxxxx'x rights or obligations hereunder to another party or
parties.,
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland applicable to
contracts executed and to be performed therein, without giving to the
choice of law rules thereof.
11. Notices. All notices, requests, demands and other communications
required to be given or permitted to be given under this Agreement
shall be in writing and shall be conclusively deemed to have been given
(1) when hand delivered to the other party, or (2) when received when
by facsimile at the address a number set forth below provided however,
that notices given by facsimile shall no be effective unless either a
duplicate copy of such facsimile notice is promptly given by depositing
same in a States post office first-class postage prepaid and addressed
to the parties as set forth below, or the receiving party delivers a
written confirmation of receipt for such notice either by facsimile or
any other method permitted under this sub additionally, any notice
given by facsimile shall be deemed received on the next business day if
such notice is received after 5:00 p.m. (recipient's time) or on a
non-business day); or (3) three (3) business days after the same have
been deposited in a United States post office with first-class
certified mail, return receipt, postage prepaid and addressed to the
parties as set forth below; or (4) the next business day after same
have been deposited with a national overnight delivery service
reasonably approved by the parties (Federal Express and DHL WorldWide
Express being deemed approved by the parties), postage prepaid,
addressed to the parties as set forth below with next-business-day
delivery guaranteed, provided that the sending party received a
confirmation of delivery from the delivery service provider. The
address of a party set forth below may be changed by that party by
written notice to the other from time to time pursuant to this Article.
To: Xxxxxx X. Xxxxxx
00000 Xxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
To: EagleBank
C/O Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
8
cc: Xxxx X. Xxxxxx, Esquire
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A.
00000 Xxxxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
12. Entire Agreement. This Agreement contains all of the agreements and
understandings between the parties hereto with respect to the
employment of Xxxxxx by Eagle, and supersedes all prior agreements,
arrangements and understandings related to the subject matter hereof.
No oral agreements or written correspondence shall be held to affect
the provisions hereof. No representation, promise, inducement or
statement of intention has been made by either party that is not set
forth in this Agreement, and neither party shall be bound by or liable
for any alleged representation, promise, inducement or statement of
intention not so set forth.
13. Headings. The Article and Section headings contained in this
Agreement are for reference purposes only and shall not in any way
affect the meaning or interpretation of this Agreement.
14. Severability. Should any part of this Agreement for any reason be
declared or held illegal, invalid or unenforceable, such determination
shall not affect the legality, validity or enforceability of any
remaining portion or provision of this Agreement, which remaining
portions and provisions shall remain in force and effect as if this
Agreement has been executed with the illegal, invalid or unenforceable
portion thereof eliminated.
15. Amendment: Waiver. Neither this Agreement nor any provision hereof
may be amended, modified, changed, waived, discharged or terminated
except by an instrument in writing signed by the party against which
enforcement of the amendment, modification, change, waiver, discharge
or termination is sought. The failure of either party at any time or
times to require performance of any provision hereof shall not in any
manner affect the right at a later time to enforce the same. No waiver
by either party of the breach of any term, provision or covenant
contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the
breach of any other term, provision or covenant contained in this
Agreement.
16. Gender and Tense. As used in this Agreement, the masculine,
feminine and neuter gender, and the singular or plural number, shall
each be deemed to include the other or others whenever the context so
indicates.
17. Binding Effect. This Agreement is and shall be binding upon, and
inures to the benefit of, Eagle, its successors and assigns, and Xxxxxx
and his heirs, executors, administrators, and personal and legal
representatives.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EAGLEBANK
By: ______________________
Title: ______________________
XXXXXX X. XXXXXX
----------------------------
Xxxxxx X. Xxxxxx
----------------------------
Date
9
