AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT
This Amended and Restated Change in Control Agreement (the "Agreement") among
The Xxxxx National Bank ("Bank"), Xxxxxxx Xxxxx National Bancorp ("Bancorp") and
Xxxxx X. Xxxxxxxx ("Executive"), is made and effective as of December 15, 2008.
WHEREAS, the Bancorp, the Bank and Executive entered into a change in control
agreement dated September 19, 2000 (the "Prior Agreement"); and
WHEREAS, Section 409A of the Internal Revenue Code of 1986, as amended, (the
"Code"), effective January 1, 2005, requires deferred compensation arrangements,
including those set forth in change in control agreements, to comply with its
provisions and restrictions and limitations on payments of deferred
compensation; and
WHEREAS, the Bancorp and the Bank desire to amend and restate the Prior
Agreement in order to make changes to comply with Code Section 409A; and
WHEREAS, Executive has agreed to such changes.
NOW, THEREFORE, in consideration of the purposes set forth above, the covenants
and conditions herein contained, and other good and valuable consideration, the
parties, intending to be bound, agree as follows:
1. Term. If a Change of Control occurs while Executive remains an employee of
Bank and Bancorp, Executive shall be entitled to the compensation set forth in
paragraph 4 of this Agreement upon any subsequent termination of her employment.
If Executive's status as an employee of the Bank or Bancorp terminates for any
reason whatsoever at any time before the occurrence of a Change of Control, this
Agreement shall terminate with Executive's employment and have no further effect
at any time thereafter. The words "terminate(d)" or "termination," when used in
connection with Executive's employment in any part of this Agreement, shall mean
and include termination as a result of death, disability, discharge, resignation
or any other reason.
2. Change of Control. The term "Change of Control," as used herein, shall mean
(a) any transaction or series of related transactions by which either Bank or
Bancorp merge or are consolidated with another company, unless the shareholders
of Bank or Bancorp, as the case may be, immediately before such event hold at
least 80% of the outstanding voting stock of the surviving entity thereafter;
(b) the sale or other transfer of more than 50% of Bank's or Bancorp's assets in
a single transaction or series of related transactions out of the ordinary
course of business; (c) any change in the membership of the Bank's board of
directors in any two-year period such that those who constituted the board at
the beginning of such period are now less than a majority of the board; (d) any
person shall become the beneficial owner of more than 50% of the voting stock of
Bancorp as a result of a tender or exchange offer, open market purchases,
privately negotiated purchases or otherwise; or (e) the occurrence of any other
event that either the Bank or the Bancorp is or would be, if subject to SEC
regulation, required to report as a change of control pursuant to Item 6 of
Schedule 14A of SEC Regulation 14A.
3. Employment Prior to Change of Control. Executive shall remain in the employ
of Bank and Bancorp and shall faithfully perform all the duties of Executive's
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position, in good faith, during any period following any announcement by any
person of a transaction which would, if effected, constitute a Change of
Control, until such change has taken place, or the plan to make it has been
cancelled or the attempt abandoned. Nothing contained in this section shall be
construed as a contract of employment or to limit the right or power of the Bank
or Bancorp to terminate the employment of Executive.
4. Compensation on Termination. If Executive's employment with the Bank or
Bancorp terminates at any time after a Change of Control, regardless of the
cause of termination, Executive shall be entitled to the following
post-termination compensation, in addition to all regular pay, vacation time and
retirement benefits accrued through the date of termination and in addition to
the continuation of non-taxable health and pension benefits to the extent
required by law: (a) severance pay of six month's base salary at the highest
salary level attained by Executive before termination, net of tax and other
withholdings required by law; and (b) pro-rated portion of annual bonus, based
on Executive's bonus for the preceding year, in accordance with the portion of
the bonus period elapsed before termination. Such severance pay shall be paid in
a single cash lump sum distribution within 30 days following Executive's
termination of employment, provided, however, if Executive is a "Specified
Employee," as defined in Treasury Regulation 1.409A-1(i), then, solely to the
extent required to avoid penalties under Code Section 409A, such payment shall
be delayed until the first day of the seventh full month following Executive's
termination of employment. In no event shall the compensation payable to
Executive under this section exceed the maximum amount that may be paid without
the arrangement constituting a "parachute payment" under Section 280G(b)(2) of
the Internal Revenue Code. Executive shall not be required to mitigate the
amount of any payment provided for in this Agreement by seeking other
employment, nor shall the amount of any payment provided for in this paragraph
be reduced by any compensation earned by Executive as the result of other
employment.
5. Successor Liability. This Agreement is made for the benefit of, and shall be
binding upon, the parties and their respective heirs, executors, administrators,
transferees, assignees and other successor in interest of every kind. Bank and
Bancorp shall require any successor to assume their liability to Executive under
this Agreement, but such assumption shall not relieve either Bank or Bancorp of
their obligations to Executive if the successor fails to perform them.
6. Miscellaneous Provisions. This Agreement (and Executive's employment
agreement, if any, with the Bank) constitute the entire agreement of the parties
with respect to this subject matter hereof. No other understanding, agreement or
representation shall have any force or effect. This Agreement may be executed in
counterparts, each of which shall be deemed an original, provided all parties
have signed at least one such counterpart. This Agreement may not be modified,
waived or discharged except by means of a further written agreement signed (on
one copy or in counterparts) by all parties. No waiver by either party at any
time of any of the provision hereof shall be deemed a waiver of any other
provision or of any future breach of the same provision. This Agreement shall be
construed under the laws of the District of Columbia.
7. Advice of Counsel. Executive acknowledges receipt of advice to seek
independent legal counsel concerning the terms of this Agreement. Executive has
obtained such counsel, or has knowingly and voluntarily waived the right to do
so. The provisions of this Agreement shall not be construed against any party on
the basis of its having drafted the same.
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8. Severability. Should any portion of this Agreement be held invalid or
unenforceable, the remaining provisions shall nevertheless remain in full force
and effect.
9. Separation from Service. Notwithstanding anything else in this Agreement to
the contrary, Executive's employment shall not be deemed to have been terminated
unless and until Executive has a Separation from Service within the meaning of
Code Section 409A. For purposes of this Agreement, a "Separation from Service"
shall have occurred if the Bank, the Bancorp and Executive reasonably anticipate
that either no further services will be performed by Executive after the date of
the termination (whether as an employee or as an independent contractor) or the
level of further services performed is less than 50% of the average level of
bona fide services in the 36 months immediately preceding the termination. For
all purposes hereunder, the definition of Separation from Service shall be
interpreted consistent with Treasury Regulation Section 1.409A-1(h)(ii).
[Signatures on following page]
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IN WITNESS WHEREOF the parties have executed this Agreement the day and year set
forth below.
XXXXXXX XXXXX NATIONAL BANCORP
Date: December 15, 2008 By: /s/ Xxxxxx X. Xxxxxx
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THE XXXXX NATIONAL BANK
Date: December 15, 2008 By: /s/ Xxxxxx X. Xxxxxx
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EXECUTIVE
Date: December 15, 2008 /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
Senior Vice President and
Chief Financial Officer
