Exhibit 10.1
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement"), is made and entered into as of the
12th day of February, 2002, by and between CARDINAL FINANCIAL CORPORATION, a
Virginia corporation with its principal offices at 00000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000 ("Company"), and Xxxxxxx X. Xxxxxxxxx ("Clineburg"), an
individual residing at 0000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
W I T N E S S E T H:
WHEREAS, Cardinal Financial Corporation is a bank holding company; and
WHEREAS, Clineburg has been retained to provide services in an executive
capacity for the Company, and the parties desire to memorialize the terms and
conditions of Clineburg's continuing employment.
NOW, THEREFORE, in consideration of the promises and obligations of the
Company and Clineburg under this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE 1
SCOPE OF EMPLOYMENT
1.1. Title and Scope of Employment. Clineburg shall be employed as Vice
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Chairman, President and Chief Executive Officer of the Company as of the
effective date of this Agreement. Clineburg shall also hold the titles and serve
in the capacity of Chairman of the Company's Executive Committee, Member or
Chair of all CFC Board Committees except the Audit Committee, and the Director
or Chair of all CFC subsidiary boards.
1.2. Duties and Responsibilities. As Vice Chairman, President and Chief
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Executive Officer of the Company, Clineburg will be responsible for the
supervision of all operations and the development of recommendations to the
board of directors of the company ("Company Board") of plans and policies for
the Company.
During the term of his employment, Clineburg is required to devote his full
time, attention and efforts, with undivided loyalty, to the business of the
Company and the affiliates and shall use his best efforts to promote their
interests.
1.3. Effective Date and Term. The commencement date of this Agreement
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shall be as of the date of this Agreement ("Commencement Date"). The term of
Clineburg's employment hereunder shall be three years and shall be automatically
extended from day to day so that on any day the remaining term shall be three
years, provided that in no event shall the term be extended beyond ten years
from the Commencement Date.
1.4. Other Affairs. Clineburg may engage in charitable and community
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affairs and manage his personal investments, and, subject to the approval of the
Board, Clineburg may also serve as a member of the board of directors of other
organizations; provided that such activities are not inconsistent with the
purposes of the Company and do not unreasonably interfere with the performance
of his duties or responsibilities as set forth in this Agreement.
ARTICLE 2
COMPENSATION AND BENEFITS
2.1. Salary. The Company agrees to pay Clineburg, for services rendered
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hereunder, salary at the annual rate of TWO HUNDRED THOUSAND DOLLARS
($200,000.00). Such salary shall be payable in equal periodic installments, not
less frequently than monthly, less any sums which may be required to be deducted
or withheld under the provisions of law. Clineburg's salary may not be adjusted
downward at any time during the term of the Agreement without his express
consent. Clineburg's salary may be adjusted upward annually at the discretion of
the Company Board, based upon its assessment of Clineburg's performance and the
Company's financial circumstances.
In addition to his salary, Clineburg will be eligible to receive bonuses at
the discretion of the Board, in cash or in stock, or both, and Director's fees
and any retainers for service on the Board. It is the Company's intention that
bonuses will be based on attainment of performance objectives established in the
discretion of the Company Board, or may be subjective, depending upon the
financial circumstances of the Company.
2.2 General Expenses. Clineburg is expected from time to time to incur
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reasonable and necessary expenses for promoting the business of the Company,
including expenses for travel, entertainment, and other activities associated
with Clineburg's duties. Reasonable and necessary expenses incurred by Clineburg
in connection with the performance of his duties hereunder will be reimbursed in
the amount of such expenses.
2.3 Benefits. Except as otherwise provided in this Agreement, Clineburg
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will be entitled to participate in any and all employee benefit plans, medical
insurance plans, retirement plans, bonus incentive plans, and other fringe
benefit programs or benefit plans from time to time in effect for senior
executive and managerial employees of the Company. Such participation shall be
subject to the terms of the applicable plan documents and generally applied
policies of the Company. This includes eligibility to participate in the
Company's qualified retirement plans as permitted by the terms of such plans.
Specific benefits that Clineburg is eligible to receive include:
(i) Medical Insurance. So long as the Company provides health and dental
insurance, Clineburg (and his eligible family members) shall have the
opportunity to participate in the same manner and on the same terms as other
officers and employees of the Company.
(ii) Long-term disability. The Company shall pay Clineburg's full premiums
for long-term disability insurance coverage, providing a disability benefit of
up to 67% of Clineburg's salary.
(iii) Annual physical examination. The Company agrees to provide, at no
cost to Clineburg, one annual physical examination through a doctor of
Clineburg's choice.
(iv) Life insurance. The Company shall pay Clineburg's premiums, for his
purchase of a term life insurance policy providing a death benefit of $500,000
to the beneficiary of Clineburg's choice, through a carrier selected by the
Company.
(v) Automobile. The Company shall reimburse Clineburg for all automobile
fuel and maintenance for his vehicle.
(vi) Vacation. Clineburg shall be entitled to receive five weeks of
vacation leave each calendar year. Clineburg shall be entitled to cumulate and
carry over any unused vacation days from year to year. Clineburg shall be
entitled to the same personal and sick leave as the Company Board may from time
to time designate for all full-time employees of the Company.
(vii) Club Dues. The Company shall pay Clineburg's Tower Club dues.
(viii) Legal Fees. The Company will reimburse Clineburg all reasonable
legal fees and costs incurred in the drafting and negotiation of this Agreement.
ARTICLE 3
EQUITIY COMPENSATION
3.1 Stock Option Grant. The Company intends to offer shares of the
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Company's common stock to existing shareholders ("Rights Offering") and to the
public ("Public Offering"). As of the date of the Closing of the Rights
Offering, the Company shall grant to Clineburg the option to purchase 150,000
shares of the Company's common stock. To the extent permitted by law, such stock
options will be Incentive Stock Options ("ISOs"). With respect to the remaining
non-qualified options, Xx. Xxxxxxxxx shall receive the most favorable terms and
conditions permitted under any Option document, with the exception of vesting.
The grant shall provide that the option to purchase 50,000 shares shall vest as
of the Closing of the Rights Offering. The option to purchase the remaining
100,000 shares shall vest over a five (5) year period at the rate of 20,000
shares per year on the Anniversary date of the Closing of the Rights Offering.
The strike price per share for all 150,000 shares shall be set as the price on
the date of the Closing of the Rights Offering.
The Company Board may also grant shares of the Company's stock or
additional options to purchase shares of the Company's stock to Clineburg as it
deems appropriate. The Company Board may further condition such grants on
attainment of performance objectives established in the discretion of the
Company Board.
ARTICLE 4
TERMINATION
4.1. Termination by the Company.
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General. The Company shall have the right to terminate this Agreement, with
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or without cause, by at least a two-thirds vote of the Company's Board, at any
time during the term of this Agreement by giving written notice to Clineburg.
The termination shall become effective on the date specified in the notice,
which termination date shall not be a date prior to the date thirty (30) days
following the date of the notice of termination itself, except there shall be no
thirty (30) day notice if the Company terminates Clineburg for Cause.
(a) Cause Defined. For purposes of this Article 4, "cause" shall mean
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any felony conviction of Clineburg; or any proven illegal drug use
4.2. Termination by Operation of Law.
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(i) If a notice served pursuant to the Federal Deposit Insurance Act or
the Virginia Banking Act suspends or temporarily prohibits Clineburg from
participating in the conduct of the Company's affairs, the Company's prospective
obligations under this Agreement shall be suspended as of the date of service of
such notice unless stayed by appropriate proceedings. If the charges in the
notice are dismissed, the Company may in its discretion (i) pay Clineburg 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. The vested rights of the parties shall not be affected.
(ii) If an order issued under the Federal Deposit Insurance Act or the
Virginia Banking Act removes or permanently prohibits Clineburg from
participating in the conduct of the Company's affairs, all
obligations of the Company under this Agreement shall terminate as of the
effective date of the order, but vested rights of the parties shall not be
affected.
(iii) If a final order of a court of competent jurisdiction removes or
permanently prohibits Clineburg from participating in the conduct of the
Company's affairs, all obligations of the Company under this Agreement shall
terminate as of the effective date of the order, but vested rights of the
parties shall not be affected.
4.3. Termination by Death or Disability of the Employee.
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(a) General. In the event of Clineburg's death during the term of this
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Agreement, all obligations of the parties hereunder shall terminate immediately,
except as set forth in 4.5 (a).
(b) Disability. If Clineburg is unable to perform his duties hereunder,
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with or without any reasonable accommodation (if such accommodation is legally
required), due to mental, physical or other disability (as defined in the
Company's then-current disability policy or policies for Clineburg) for a period
of ninety (90) consecutive days in any 180-day period, as determined in good
faith by the Company Board, this Agreement may be terminated by the Company, at
its option, by written notice to Clineburg, effective on the termination date
specified in such notice, provided that such termination date shall not be a
date prior to the date of the notice of termination itself. In the event of
termination because of disability, Xx. Xxxxxxxxx shall be entitled to collect
all compensation earned prior to termination, have all reasonable expenses
reimbursed and shall be entitled to any disability or other benefits as his
policy or policies shall permit.
4.4. Termination by Clineburg. Clineburg may terminate this Agreement at
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any time, with or without cause, by giving written notice to the Company. Any
such termination shall become effective on the date specified in such notice,
provided that the Company may elect to have such termination become effective on
a date after, but not more than, thirty (30) days after the date of the notice.
4.5. Effect of Expiration or Termination.
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(a) General. In the event this Agreement expires or is terminated for
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cause or because of the death of Clineburg, then both parties' obligations
hereunder shall immediately cease (including any right to compensation and
benefits under Articles 2 and 3), except that: (i) Clineburg or his estate or
personal representative shall be entitled to receive the current Salary owed him
through the effective date of such expiration or termination; and (ii) the
Company will pay, or reimburse, Clineburg's reasonable and necessary business
expenses incurred prior to the date this Agreement expires or terminates.
(b) Treatment of Performance Bonus. Notwithstanding the above, Clineburg
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shall receive any Performance Bonus he has earned for the period at issue.
(c) Severance Payment. In the event the Agreement is terminated without
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cause by the Company for a reason other than Clineburg's death, disability, or
Change in Control, the Company shall pay to Clineburg within 30 days of the date
of termination, a lump sum payment equal to the amount of one year's annual
salary, plus the average of his bonuses paid in each calendar year prior to the
year in which he was terminated.
4.6 (a) Change in Control. In the event a Terminating Event occurs
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after a Change in Control or Ownership, all obligations of the Company under
this Agreement shall terminate as of the effective date of Clineburg's
termination, except that the Company shall pay to Clineburg an aggregate amount
equal to 2.99 times Clineburg's average compensation (including without
limitation Base Salary, bonuses, stock options, directors' fees and retainers)
over the most recent five calendar year period of Clineburg's employment with
the Company prior to the termination ("the Severance Payment"). The
Severance Payment shall be paid to Clineburg in a lump sum within thirty (30)
days of Clineburg's effective date of termination of employment. The Severance
Payment under this provision is the exclusive benefit available to Clineburg as
the result of termination without cause by the Company for a reason other than
Clineburg's death or disability, and in lieu of, and not in addition to, any
payment or compensation payable under any other provision of this Agreement.
(b) 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 Corporation securities having 40% or more of the combined
voting power of the then outstanding Corporation securities that may be cast for
the election of the Company's directors other than a result of an issuance of
securities initiated by the Company, or open market purchases approved by the
Company Board, as long as the majority of the Company Board 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 Company before such events cease to constitute a majority of the Company
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. Notwithstanding
anything to the contrary in this Agreement, the Rights Offering and the Public
Offering, defined hereinabove, shall not constitute a Change of Control. A
"terminating Event" is defined as the date Clineburg gives notice to the
successor of the Change in Control of his intent to exercise his rights under
this Agreement relating to the Change in Control. Clineburg shall give notice no
later than One (1) year following the Change of Control.
(c) Limitation of Severance Payments.
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(i) If any payment received or to be received by Clineburg in connection
with an event described in Section 280G(2)(A)(i) of the Internal Revenue Code of
1986, as amended (the "Code") (whether payable pursuant to the terms of this
Agreement or any other plan, arrangement or agreement with the Company (or its
affiliates), any Person whose actions result in a Change in Control or Ownership
of the Company or any Person affiliated with the Company or such Person
(together with the Severance Payment, the "Total Payments") would not be
deductible by the Company in full as a result of Section 280G of the Code, the
Severance Payment or other parachute payments or both shall be reduced until no
portion of the Total Payments is not deductible as a result of Section 280G of
the Code, or the Severance Payment is reduced to zero, whichever occurs first.
(ii) In the event a dispute develops between the Company and Clineburg as
to the manner of calculating the amount of the Severance Payment payable to
Clineburg pursuant to this provision, the Severance Payment shall be calculated
by the Company's independent certified public accountants and, if desired, by
Clineburg's choice of accountant, selected by outside legal counsel, whose joint
determination shall be binding on the parties hereto. In the event the Company
and Clineburg are still unable to agree, the parties' representatives
(financial) shall designate a third party, whose expense shall be borne equally
by the parties, and whose determination shall be final and binding.
(iii) As a result of the possible uncertainty in the application of Section
280G of the Code at the time of the initial determination of any amount payable
hereunder or as a result of the uncertainties of this Agreement as they may be
affected by other compensation plans, programs, or agreements of the Company, it
is possible that payments made under this Agreement will have been made by the
Company which should not have been made (an "Overpayment") or that additional
payments could have been made which were not made (an "Underpayment"),
consistent in each case with subparagraph 5.5 (a) above. In the event that a
payment or other benefit is due to Clineburg under this Agreement or any other
plan, program or agreement of the Company and such payment or benefits results
in an Overpayment, as determined by the same
process set forth in 5.5(b)(ii), such Overpayment shall be treated for all
purposes as a loan to Clineburg which he shall repay to the Company, together
with interest at the applicable federal rate provided for in Section 7872(f)(2)
of the Code. In the event that the Company, based on the assertion of a
deficiency by the Internal Revenue Service against the Company or Clineburg the
Company's certified public accountants or outside legal counsel believe has a
high probability of success, determine that an Overpayment has been made, such
Overpayment shall be treated as a loan to Clineburg which he shall repay to the
Company, together with interest at the applicable federal rate provided in
Section 7872(f)(2) of the Code; provided however, that no amount shall be
payable by the Clineburg to the Company if and to the extent that such payment
would not reduce both the amount which is subject to taxation under Section 4999
of the Code and the deduction denied under Section 280G of the Code. In the
event that the joint determination by the Company's independent certified public
accountants and Clineburg's designated accountant by his outside legal counsel,
based on controlling precedent, is that an Underpayment has occurred, such
Underpayment shall be paid promptly by the Company to or for the benefit of
Clineburg, together with interest at the applicable federal rate provided for in
Section 7872(f)(2) of the Code.
(iv) In the event of any review, challenge or proceeding, by or involving
any state or federal government authority or agency respecting the payments
under this Article 4, the Company shall be solely responsible for all attorney's
fees, costs, penalties, fines, taxes and interest assessed in connection with
any proceeding, regardless of the ultimate finding or conclusion of the agency.
4.7. Cooperation. Following any termination, Clineburg shall fully
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cooperate with the Company in all matters related to the handing over and
transitioning of his pending work to other employees of the Company as may be
designated by the Company's Board.
4.8. Stock Options. In the event of termination, for any reason except by
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the Company for Cause, all Clineburg's options shall immediately vest, and
Clineburg shall be entitled, for a 90-day period after the date of termination,
to exercise the options granted to him to purchase shares of the Company's
common stock. With respect to all non-qualified options, Xx. Xxxxxxxxx shall
have the maximum time allowed under the Plan in which to exercise such options.
ARTICLE 5
CONFIDENTIALITY, NON-DISCLOSURE AND COVENANT NOT TO COMPETE
5.1. Confidentiality/Nondisclosure. Clineburg covenants and agrees that any
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and all confidential information concerning the customers, businesses and
services of the Company of which he has knowledge or access as a result of his
association with the Company in any capacity, shall not, without the proper
written consent of the Company, be directly or indirectly used, disseminated,
disclosed or published by Clineburg to third parties other than in connection
with the usual conduct of the business of the Company. The term "confidential
information" shall expressly include, but shall not be limited to, information
concerning the Company's trade secrets, business operations, business records,
customer lists or other customer information, financial information, business
plans and opportunities (such as lending relationships, financial product
developments or possible acquisitions or dispositions of businesses or
facilities) that have been discussed or considered by the management of the
Company. "Confidential information" does not include any information that has
become lawfully part of the public domain, in accordance with this Agreement.
5.2. Covenant Not to Compete. During the term of this Agreement and
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throughout any further period that he is an officer or employee of the Company,
and for a period of one year from and after the date that Clineburg is no longer
employed by the Company, or for a period of one year 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 Clineburg, whichever is later, Clineburg covenants and
agrees that he will not, directly or indirectly, either as a principal or
employee: (i) engage in a Competitive Business anywhere within a ten (10) mile
radius of any office operated by the Company on the date Clineburg's employment
terminates; or (ii) solicit, or assist
any other person or business entity in soliciting, any depositors or other
customers of the Company 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 Company or its affiliates. As
used in this Agreement, the term "Competitive Business" means all banking and
financial products and services that are substantially similar to those offered
by the Company on the date that the Clineburg's employment terminates. Merchant
Banking is explicitly excluded from the definition of "Competitive Business."
5.3. Injunctive, Relief, Damages. Etc. Clineburg agrees that given the
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nature of the positions held by Clineburg with the Company, that each and every
one of the covenants and restrictions set forth in this Article 5 are reasonable
in scope, length of time and geographic area and are necessary for the
protection of the significant investment of the Company in developing,
maintaining and expanding its business. Accordingly, the parties hereto agree
that in the event of any breach by Clineburg of any of the provisions of Article
5 that monetary damages alone will not adequately compensate the Company 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.
ARTICLE 6
MISCELLANEOUS
6.1. Severability. The invalidity or unenforceability of any
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particular provision of this Agreement shall not affect the validity or
enforceability of any other provisions hereof, and this Agreement shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
6.2. Assignment. Except as provided below, neither the rights nor
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obligations under this Agreement may be assigned by either party, in whole or in
part, by operation of law or otherwise, except that it shall be binding upon and
inure to the benefit of any successor of the Company and its subsidiaries and
affiliates, whether by merger, reorganization or otherwise, or any purchaser of
all or substantially all of the assets of the Company.
6.3. Notices. Any notice expressly provided for under this Agreement
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shall be in writing, shall be given either manually or by mail and shall be
deemed sufficiently given when actually received by the party to be notified or
when mailed, if mailed by certified or registered mail, postage prepaid,
addressed to such party at their addresses as set forth below. Either party may,
by notice to the other party, given in the manner provided for herein, change
their address for receiving such notices.
If to the Company, to:
Chairman of the Board
Cardinal Financial Corporation
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx, 00000
With a copy to:
Xx. Xxxx X. Xxxx, Xx.
00000 Xxxx Xxxxxx X.X. Xxx 000
Xxxxxxx, Xxxxxxxx 00000
If to Clineburg, to:
Xx. Xxxxxxx X. Xxxxxxxxx
0000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxxxxx, P.C.
11260 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
6.4. Governing Law. This Agreement shall be executed, construed and
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performed in accordance with the laws of the Commonwealth of Virginia without
reference to conflict of laws principles. The parties agree that the venue for
any dispute hereunder will be the Circuit Court of Fairfax, Virginia and the
parties hereby agree to the exclusive jurisdiction thereof.
6.5. Entire Agreement:
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(i) This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes any and all other
agreements, either oral or in writing, among the parties hereto with respect to
the subject matter hereof. After the Offering and before November 1, 2002, the
parties will endeavor to reach a new Agreement which shall include further
compensation and benefits commensurate with such achievements, including
customary perks provided to an executive in Clineburg's position, including a
company automobile, SERP, success bonus, and the like.
(ii) This Agreement may be executed in one or more counterparts, each
of which shall be considered an original copy of this Agreement, but all of
which together shall evidence only one agreement.
6.7. Amendment and Waiver. This Agreement may not be amended except
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by an instrument in writing signed by or on behalf of each of the parties
hereto. No waiver of any provision of this Agreement shall be valid unless in
writing and signed by the person or party to be charged.
6.8. Headings. The section headings contained in this Agreement are
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for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
COMPANY:
CARDINAL FINANCIAL CO
By: /s/ Xxxx X. Xxxx, Xx.
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Xxxx X. Xxxx, Xx. Chairman
/s/ Xxxxxxx X. Xxxxxxxxx (SEAL)
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Xxxxxxx X. Xxxxxxxxx
