EXHIBIT 10.17
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated as of March 23, 2001, between COLUMBIA BANCORP,
a Maryland corporation (the "Corporation"), THE COLUMBIA BANK, a Maryland trust
company and a principal subsidiary of the Corporation (the "Bank"), and Xxxxxxxx
X. Xxxxxxxx (the "Executive"). The Severance Agreement dated as of March 25,
1998, between the Corporation, the Bank and the Executive, is hereby terminated
effective with the execution of this Employment Agreement.
W I T N E S S E T H:
- - - - - - - - - -
The Executive will serve as the Executive Vice President of the Bank and
possesses an intimate knowledge of the business and affairs of the Corporation
and the Bank (each, a "Company" and collectively, the "Companies"). The
Companies recognize the Executive's contribution to the organization, growth and
success of the Companies and desire to enter into an employment agreement with
the Executive in order to assure to the Companies the benefits of the
Executive's expertise and knowledge. The Executive, in turn, desires to enter
into full-time employment with the Companies on the terms provided herein.
Accordingly, in consideration of the mutual covenants and representations
contained herein and the mutual benefits derived herefrom, the parties hereto
agree as follows:
1. Full-Time Employment of Executive.
----------------------------------
1.1. Duties and Status.
-----------------
(a) The Companies hereby engage the Executive as a full-time
executive employee for the period (the "Employment Period") specified in
paragraph 4.1, and the Executive accepts such employment, on the terms
and conditions set forth in this Agreement. During the Employment
Period, the Executive shall exercise authority and perform executive
duties as an Executive Vice President of the Bank.
(b) During the Employment Period, the Executive shall (i) not
engage in consulting work or any trade or business for his own account or
for or on behalf of any other person, firm or corporation which competes,
conflicts or materially interferes with the performance of his duties
hereunder in any way and (ii) accept such additional office or offices to
which he may be elected by the Board of Directors of either of the
Companies, provided that the performance of the duties of such office or
offices shall be consistent with the scope of the duties provided for in
paragraph 1.1(a).
(c) The Executive shall be required to perform the services and
duties provided for in paragraph 1.1(a) only at the principal office of
either of the Companies in Columbia, Maryland, or at such other locations
acceptable to the Executive. The Executive shall be entitled to
vacation, leave of absence, and leave for illness or temporary disability
in accordance with the policies to be established for the Companies,
which shall be similar to those commonly offered at comparable banking
institutions, and any leave on account of illness or temporary disability
shall not constitute a breach by the Executive of his agreements
hereunder.
1.2. Compensation and General Benefits. As compensation for his
---------------------------------
services under this Agreement, the Executive shall be compensated as
follows:
(a) The Companies shall pay the Executive an annual salary which
is not less than the greater of (i) a base salary of $115,000 per annum,
or (ii) any subsequently established higher annual base salary. Such
salary shall be payable in periodic equal installments which are no less
frequent than monthly. Such salary shall be subject to normal periodic
review at least annually for increases based on the salary policies of
the Companies and contributions to the enterprises.
(b) The Executive shall be entitled to participate in such
pension, profit sharing, stock incentive, stock option, stock purchase,
incentive, group and individual disability, group and individual life,
survivor
income, sickness, accident, dental, medical or health insurance and other
plans of the Companies which are in effect immediately prior to the
effective date of this Agreement or in any other or additional benefit
programs, plans or arrangements of the Companies which may be established
by the Companies, as and to the extent any such benefit programs, plans
or arrangements are or may from time to time be in effect, as determined
by the Companies and terms hereof. The Companies shall neither (i)
terminate or amend any benefit program, plan or arrangement of the
Companies pursuant to which the Executive, or his dependents,
beneficiaries or estate, is or shall be entitled to benefits, nor (ii)
terminate or amend any formula or method set forth in any benefit
program, plan or arrangement of the Companies pursuant to which the
amount and type of benefits to which the Executive, or his dependents,
beneficiaries or estate, is or shall be entitled thereunder are
determined, if such termination or amendment would in any way modify or
deprive the Executive, or his dependents, beneficiaries or estate, of any
benefits to which he, or his dependents, beneficiaries or estate, is or
shall be entitled under any benefit program, plan or arrangement of the
Companies, unless (a) the Executive expressly consents in writing to such
termination or amendment or (B) the amendment is required by law or
regulation and the Companies shall, to the extent necessary, provide, pay
or provide for payment of amounts equal to any benefits lost or reduced
by such amendment. Throughout the period of his employment hereunder,
the Executive shall be entitled to the receipt of any personal benefits
from the Companies at the Companies' expense including, but not limited
to, any other perquisites provided by the Companies to executives with
comparable authority or duties. The term "benefit programs, plans, or
arrangements of the Companies" as used in this Agreement refers to the
matters in this paragraph 1.2(b).
2. Competition; Confidential Information. The Executive and the
-------------------------------------
Companies recognize that due to the nature of his association with the Companies
and of his engagements hereunder, and the relationship of the Executive to the
Companies, both in the past as an organizer and in the future hereunder, the
Executive has had access to and has acquired, will have access to and will
acquire, and has assisted in and may assist in developing, confidential and
proprietary information relating to the business and operations of the Companies
and their affiliates, including, without limiting the generality of the
foregoing, information with respect to its present and prospective systems,
customers, agents, accounts, deposits, loans, and sales and marketing methods.
The Executive acknowledges that such information has been and will continue to
be of central importance to the business of the Companies and their affiliates
and that disclosure of it to or its use by others could cause substantial loss
to the Companies. The Executive and the Companies also recognize that an
important part of the Executive's duties will be to develop good will for the
Companies and their affiliates through his personal contact with customers,
agents and others having business relationships with the Companies and their
affiliates, and that there is a danger that this good will, a proprietary asset
of the Companies and their affiliates, may follow the Executive if and when his
relationship with the Companies is terminated. The Executive accordingly agrees
as follows:
2.1. Non-Competition.
---------------
(a) During the Non-Competition Period, the Executive will not,
directly or indirectly, either individually or as owner, partner, agent,
employee, consultant or otherwise, except for the account of and on
behalf of the Corporation or its affiliates ("affiliates" is defined
solely for purposes of this paragraph 2 as "Columbia Bancorp and its
subsidiaries"), engage in any activity competitive with the business of
the Companies or their affiliates, nor during the Non-Competition Period
will he, in competition with the Companies or their affiliates, solicit
or otherwise attempt to establish for himself or any other person, firm
or entity, any business relationships with any person, firm or
corporation which was, at any time during the Non-Competition Period, (i)
a state or national bank, (ii) a bank holding company, or (iii) a direct
or indirect subsidiary of a state or national bank or a bank holding
company, in each case which has its principal operations located in
Xxxxxx County, Maryland or within a 15 mile radius of the principal
office of the Corporation in Columbia, Maryland, excepting both the City
of Baltimore and Washington, D.C.
(b) The Non-Competition Period shall commence on the date of
this Agreement and shall terminate on:
(i) The date of the termination of the Employment
Period; or
(ii) If the Executive resigns in circumstances other than
those described in paragraph 4.3(a)(ii), two years after the date of
such resignation; provided, however, that if the Executive resigns
during a Change in Control Period in circumstances other than those
described in paragraph 4.3(a)(ii), the Non-Competition Period shall
terminate on the date of such resignation; or
2
(iii) If the Executive is terminated for cause (as defined
in paragraph 4.3(b)), two years after the date of such termination
for cause.
(c) Nothing in this paragraph 2 shall be construed to prevent the
Executive from owning, as an investment, not more than 1% of a class of
equity securities issued by any issuer and publicly traded and registered
under Section 12 of the Securities Exchange Act of 1934.
2.2. Trade Secrets. The Executive will keep confidential any trade
-------------
secrets or confidential or proprietary information of the Corporation and
its affiliates which are now known to him or which hereafter may become
known to him as a result of his employment or association with the
Companies and shall not at any time directly or indirectly disclose any
such information to any person, firm or corporation, or use the same in
any way other than in connection with the business of the Companies or
their affiliates during and at all times after the expiration of the
Employment Period. For purposes of this Agreement, "trade secrets or
confidential or proprietary information" means information unique to the
Companies or any of their affiliates which has a significant business
purpose and is not known or generally available from sources outside the
Companies or any of their affiliates or typical of industry practice.
3. Companies' Remedies for Breach. It is recognized that damages in
------------------------------
the event of breach of paragraph 2 by the Executive would be difficult, if not
impossible, to ascertain, and it is therefore agreed that the Companies, in
addition to and without limiting any other remedy or right they may have, shall
have the right to an injunction or other equitable relief in any federal or
state court of competent jurisdiction in the State of Maryland, enjoining any
such breach, and the Executive hereby waives any and all defenses he may have on
the ground of lack of jurisdiction or competence of the court to grant such an
injunction or other equitable relief. The existence of this right shall not
preclude any other rights and remedies at law or in equity which the Companies
may have. In the event the Companies seek an injunction against the Executive
and lose, then the Companies shall be liable for damages and for any legal fees
incurred by the Executive in defending the action.
4. Employment Period.
-----------------
4.1. Duration. The Employment Period shall commence on the date of
--------
this Agreement (the "Effective Date") and shall continue until the
earlier of (i) the close of business on the date which is two years after
the date on which, during the Employment Period, either of the Companies
gives written notice of termination to the Executive or the Executive
gives written notice of termination to either of the Companies, as
applicable, but not later than the close of business on July 2, 2026,
(ii) termination of this Agreement (as defined in paragraph 4.3(a)),
(iii) death of the Executive, (iv) total disability of the Executive (as
defined in paragraph 4.3(c)), (v) resignation of the Executive in
circumstances other than those described under paragraph 4.3(a)(ii), or
(vi) discharge of the Executive for cause (as defined in paragraph
4.3(b)).
4.2. Payments after Employment Period.
--------------------------------
(a) In the event of a termination of this Agreement under
paragraph 4.1(ii), the Companies shall pay to the Executive and
provide him with the following:
(i) During the remainder of the Employment Period
(determined without regard to paragraph 4.1(ii)), but not less than
one year following the occurrence of any event of termination under
paragraph 4.1(ii), the Companies shall continue to pay the Executive
his salary at the rate and as required by paragraph 1.2(a) and in
effect immediately prior to the date of termination plus (in any
year after the first year) an annual bonus payable at the time or
times customary during the Employment Period, which bonus shall be
equivalent to a certain percentage of his salary paid to him by the
Companies for each such year during the remainder of the Employment
Period (determined without regard to paragraph 4.1(ii) but with
regard to paragraphs 4.1(iii) and (iv)), such percentage to be equal
to the average of the percentage of his salary which his annual
bonus represented during each of the three years immediately
preceding termination of this Agreement.
(ii) During the remainder of the Employment Period
(determined without regard to paragraph 4.1(ii) but with regard to
paragraphs 4.1(iii) and (iv)), the Executive shall continue to be
treated as an executive (at the level provided for in paragraph
1.1(a)) under all of the benefit programs,
3
plans or arrangements of the Companies described in paragraph
1.2(b). In addition, the Executive shall continue to be entitled to
all benefits and service credits for benefits under all of the
benefit programs, plans or arrangements of the Companies described
in paragraph 1.2(d) as if he were still employed during such period
under this Agreement.
(iii) If, despite the provisions of subparagraph (ii)
above, benefits, service credits, or the right to accrue further
benefits or service credits under any benefit programs, plans or
arrangements of the Companies described in paragraph 1.2(b) shall
not be payable or provided to the Executive, or his dependents,
beneficiaries and estate, because he is not longer an employee of
one or both of the Companies, the Companies shall, to the extent
necessary, provide, pay or provide for payment of equivalent
benefits, service credits and rights to accrue further benefits or
service credits to or for the benefit of the Executive, his
dependents, beneficiaries and estate.
(b) In the event of a termination of this Agreement under
paragraph 4.1(ii), the Executive in his discretion may elect, within
60 days after such termination, to be paid a lump sum or other agreed
severance allowance in lieu of termination payments provided for in
paragraph 4.2(a) in an amount of cash which shall be negotiated and
agreed upon in writing between the Executive and the Companies. Among
the forms which the severance allowance may take, if negotiated and
agreed upon in writing between the Executive and the Companies, shall
be payment of equal installments to the Executive the present value of
which, computed at the time required by Section 4999 of the Internal
Revenue Code of 1986 (the "Code"), is below the threshold necessary to
trigger applicability of Section 4999 of the Code which imposes a
nondeductible excise tax on any recipient of an "excess parachute
payment" equal to 20% of the amount of such payment. In the event that
the Executive makes an election pursuant to this paragraph 4.2(b), the
severance allowance shall represent the present fair market value of
the amount of salary, bonuses and all benefit programs, plans and
arrangements of the Companies which the Executive would be entitled to
during the Employment Period (determined without regard to paragraph
4.1(iii)) under this Agreement. Upon the date that the Companies and
the Executive enter into a written agreement providing for a severance
payment, the Companies' obligations to the Executive pursuant to
paragraph 4.2(a) shall terminate. In the event that the Executive and
the Companies are unable to negotiate a mutually satisfactory
agreement concerning the amount of a severance payment pursuant to
this paragraph 4.2(b), then the Executive shall receive termination
payments and benefits as provided in paragraphs 4.2(a). Payments made
under this paragraph 4.2(b) shall continue notwithstanding the
subsequent death or disability of the Executive.
(c) In the event of a termination of this Agreement under
paragraph 4.1(iii), (i) the Companies shall pay the Executive's estate
an amount equal to six months' salary at the rate and as required by
paragraph 1.2(a) and in effect immediately prior to the date of death,
(ii) the Companies shall continue benefits under the Companies'
sickness, accident or health insurance for a period of six months
following death of the Executive for those dependents and
beneficiaries of the Executive who were covered by such programs,
plans or arrangements at the date of the Executive's death, and (iii)
the Executive's dependents, beneficiaries and estate, as the case may
be, will receive such survivor and other benefits as they may be
entitled under the terms of the benefit programs, plans, and
arrangements described in paragraph 1.2(b) which provide benefits upon
death of the Executive.
(d) In the event of a termination of this Agreement under
paragraph 4.1(iv), (i) the Companies shall pay the Executive an amount
equal to six months' salary at the rate and as required by paragraph
1.2(a) and in effect immediately prior to the date of total
disability, (ii) the Companies shall continue benefits under the
Companies' sickness, accident and health insurance for two years
following the date of total disability for the Executive and his
dependents and beneficiaries who are covered by such programs, plans
and arrangements during the two-year period; and (iii) the Executive,
and his dependents, beneficiaries and estate, as the case may be, will
receive such benefits as they may be entitled under the terms of the
benefit programs, plans, and arrangements described in paragraph
1.2(b) which provided benefits upon total disability of the Executive.
(e) In the event of a termination of this Agreement under
paragraph 4.1(v) or (vi), the Executive, and his dependents,
beneficiaries and estate, as the case may be, will receive such
benefits as they may be entitled under the terms of the benefit
programs, plans, and arrangements of the Companies described in
paragraph 1.2(b) which provide benefits upon retirement, resignation
or discharge for cause, as the case may be.
(f) The Executive shall not be required to mitigate the amount
of any payment provided for in this paragraph 4.2 by seeking
employment or otherwise, nor shall the amount of any payment provided
for in this
4
paragraph 4.2 be reduced by any compensation or remuneration earned by
the Executive as the result of employment by another employer, or
self-employment, or as a partner, after the date of termination or
otherwise. Any payment provided for in this paragraph 4.2 shall be
deemed "liquidated damages" rather than a "penalty."
4.3. Definitions. The following words shall have the specified meanings
------------
when used in the paragraphs specified:
(a) In paragraphs 4.1(ii), 4.2(a) and (b) and 5, the term
"termination" means termination (i) by either of the Companies of the
employment of the Executive with either of the Companies for any
reason other than death or total disability of the Executive or other
than for cause, or (ii) by resignation of the Executive due to a
significant change in the nature or scope of his authorities or duties
from those contemplated in paragraph 1.1, a reduction in total
compensation from that provided in paragraph 1.2, or the breach by
either of the Companies of any other provision of this Agreement.
(b) In paragraphs 4.1(vi) and 4.3(a)(i), the term "cause"
means (i) substantiated fraud, or substantiated misappropriation
resulting in material damage to the property or business of either of
the Companies; conviction for commission of a felony; (ii) continuance
of either willful and repeated failure or grossly negligent and
repeated failure by the Executive to perform his duties in compliance
with this Agreement after written notice to the Executive by the Board
of Directors specifying such failure, provided that such "cause" shall
have been found by a majority vote of the Board of Directors of each
of the Companies (who are not serving as a designee of a person having
an interest in excess of 25% of the outstanding stock of the
Corporation) after at least 10 days' written notice to the Executive
specifying the cause proposed to be claimed and after an opportunity
for the Executive to be heard at meetings of such Board of Directors;
or (iii) a continued violation of paragraph 2 after written notice to
the Executive by the Board of Directors specifying such violation and
providing the Executive the opportunity to cease such violation within
20 days from the date of receipt by the Executive of such notice.
(c) In paragraphs 1.1(c), 4.1(iv), 4.2(d) and 4.3(a)(i), the
term "total disability" means total disability as defined in the
Companies' group and individual disability plans. If there is no such
plan, then "total disability" means total disability as defined in the
Executive's individual disability policy, and if there is no such
policy, as defined in the group disability plan for the law firm of
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, L.L.P., 0000 Xxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000.
5. Payments for Termination or Resignation after a Change in
---------------------------------------------------------
Control.
-------
5.1. Definitions.
-----------
(a) A "Change in Control," as used in this Agreement, shall
be deemed to have occurred when:
(i) Any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder) is or becomes the beneficial owner,
directly or indirectly, of 25% or more of the voting equity stock of the
Corporation, or any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder) other than the Corporation is or
becomes the beneficial owner, directly or indirectly, of 25% or more of
the Common Stock of the Bank; or
(ii) Any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder) gains control of the election of a
majority of the Board of Directors of the Corporation, or any person (as
such term is used in Sections 13(d) and 14(d) of the Securities Exchange
Act of 1934, as amended, and the regulations promulgated thereunder)
other than the Corporation gains control of the election of a majority of
the Board of Directors of the Bank; or
(iii) Any person (as such term is used in Sections 13(d) and
14(d) of the Securities Exchange Act of 1934, as amended, and the
regulations promulgated thereunder) gains control of the management or
policies of either of the Companies; or
5
(iv) either of the Companies consolidates with, or merges
with or into, another entity (including a corporation, bank, partnership,
trust, association, joint venture, pool, syndicate, sole proprietorship,
unincorporated organization or any other form of entity not specifically
listed herein) or sells, assigns, conveys, transfers, leases or otherwise
disposes of all or substantially all of its assets, or another such
entity consolidates with, or merges with or into, such Company, in any
such event pursuant to a transaction in which the issued and outstanding
shares of the voting equity stock of such Company are converted into or
exchanged for cash, securities or other property; or
(v) during any consecutive two-year period, individuals who
at the beginning of such period constituted the Board of Directors of
either Company (together with any directors who are members of the Board
of Directors on the date hereof and any new directors whose election by
such Board of Directors or whose nomination for election by the
stockholders of such Company was approved by a vote of 66-2/3% of the
directors then still in office who were either directors at the beginning
of such period of whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of
the Board of Directors of such Company then in office.
(b) A "Change in Control Period" shall mean the period
commencing 90 days before a Change in Control and ending 365 days after
such Change in Control.
5.2. Amount of Payments. Except as provided in paragraph 5.2(e), and in
------------------
lieu of amounts payable under paragraph 4, the Companies will pay the
Executive the following amounts in the following circumstances:
(a) (i) If the Executive is terminated by either of the
Companies in the circumstances described under paragraph 4.3(a)(i), or if
the Executive resigns during a Change in Control Period in the
circumstances described under paragraph 4.3(a)(ii), or if during a Change
in Control Period the Executive resigns in circumstances other than those
described under paragraph 4.3(a)(ii) without having been offered an
employment agreement the terms of which are comparable to those of this
Agreement, the Companies will pay, or cause to be paid, to the Executive:
(a) if the Executive's termination or resignation occurs before the
Executive has attained the age of 63 years, an amount equal to two times
the sum of (i) the Executive's annual base salary immediately before the
Change in Control and (ii) the average of the bonuses paid to the
Executive over the past three years (including years in which no bonus
was awarded); or (b) if the Executive's termination or resignation occurs
on or after the Executive has attained the age of 63 years, an amount
equal to the amount set forth in paragraph 5.2(a)(i)(a) multiplied by a
fraction, the numerator of which shall be 730 minus the number of days
which have passed since the Executive's 63rd birthday, and the
denominator of which shall be 730.
(ii) Such payment shall be made in one lump sum within 15
business days after the Executive's termination or resignation.
(b) (i) If the Executive resigns during a Change in Control
Period in circumstances other than those described under paragraph
4.3(a)(ii) after having been offered an employment agreement the terms of
which are comparable to those of this Agreement, the Companies will pay,
or cause to be paid, to the Executive: (a) if the Executive's
resignation occurs before the Executive has attained the age of 64 years,
an amount equal to the sum of (i) the Executive's annual base salary
immediately before the Change in Control and (ii) the average of the
bonuses paid to the Executive over the past three years (including years
in which no bonus was awarded); or (b) if the Executive's resignation
occurs on or after the Executive has attained the age of 64 years, an
amount equal to the amount set forth in paragraph 5.2(b)(i)(a) multiplied
by a fraction, the numerator of which shall be 365 minus the number of
days which have passed since the Executive's 64th birthday, and the
denominator of which shall be 365.
(ii) Such payment shall be made in one lump sum within 15
business days after the Executive's resignation.
(c) Except as provided in paragraph 5.2(e), if the Executive
is terminated by the Companies or resigns as described in paragraph
5.2(a), or resigns as described in paragraph 5.2(b), the Executive shall
continue to receive all health, life, and disability insurance benefits
available to him pursuant to paragraph 1.2(b) of this Agreement
immediately before such termination or resignation. The Executive shall
continue to receive such benefits until the earliest of (a) such time as
the Executive shall have been receiving substantially similar insurance
benefits for six months under subsequent employment, (b) 24 months after
the date of a termination or
6
resignation described in paragraph 5.2(a) or 12 months after the date of
a resignation described in paragraph 5.2(b), or (c) such date as the
Executive shall have attained the age of 65 years.
(d) All options granted to the Executive under the
Corporation's stock option award arrangements providing for the granting
of options to acquire common stock to founders, directors and key
employees shall immediately become fully vested in the event of a Change
in Control.
(e) The Executive is to receive no payments under paragraph
5.2(a) or (b) and no benefits under paragraph 5.2(c) if the Executive is
terminated during a Change in Control Period after having already
attained the age of 65 years, or if the Executive is terminated by either
of the Companies during a Change in Control Period upon the death or
total disability of the Executive or for cause. In an instance of death
or total disability of the Executive, however, the Executive and his
dependents, beneficiaries and estate shall receive any benefits payable
to them under paragraphs 4.2 (c) and 4.2 (d).
(f) Notwithstanding the foregoing, in the event that any of
the amounts payable to the Executive under paragraph 5.2 would, if made,
cause the Executive to have tax under Section 4999 of the Code, the
Executive may elect, at his discretion, to reduce the amount payable to
him under paragraph 5.2(a) or (b) by an amount such that the aggregate
after-tax amounts the Executive will receive under paragraph 5.2 will be
equal to the aggregate after-tax amounts the Executive would receive
without the reduction he elected (i.e., the aggregate amounts after the
application of the tax under Section 4999 of the Code and other taxes)."
6. Legal Costs. If (i) either of the Companies shall fail to pay or
-----------
provide for payment of any amounts required to be paid or provided for hereunder
at any time, (ii) the Executive desires to consult with or retain counsel as to
any possible breach by the Companies of this Agreement or as to any of his
rights under this Agreement, or (iii) the Executive desires to retain counsel to
review or negotiate the terms of this Agreement prior to the effective date of
this Agreement, the Executive shall be entitled to consult with counsel, and the
Companies agree to pay the reasonable fees and expenses of independent counsel
for the Executive in reviewing or negotiating this Agreement, advising him or in
bringing any proceedings, or in defending any proceedings, involving the
Executive's rights under this Agreement, such right to reimbursement to be
immediate upon the presentment by Executive of written xxxxxxxx for such
reasonable fees and expenses. The Executive shall be entitled to receive
interest (at the prime rate of interest established from time to time at
Allfirst Bank) on any payments of such expenses, or any other payments under
this Agreement, that are overdue.
7. Notices. Any notice, requests, demands and other communications
-------
provided for by this Agreement shall be sufficient if in writing and if sent by
registered or certified mail/return receipt to the Executive at the last address
he has filed in writing with either of the Companies or, in the case of either
of the Companies, at its principal executive offices.
8. Binding Agreement. This Agreement shall be effective as of the
-----------------
date hereof and shall be binding upon and inure to the benefit of the Executive,
his executors, administrators and personal representatives. The rights and
obligations of the Corporation and of the Bank under this Agreement shall inure
to the benefit of and shall be binding upon the Companies, and shall be
transferred to and be binding upon any successor of either of the Companies
including, but not limited to, any successor of either of the Companies pursuant
to a merger, conversion, consolidation, or transfer of assets; provided, that
this Agreement may not be assigned by either of the Companies without the
consent of the Executive, and in the case of a successor by transfer of all or
substantially all of the assets of either of the Companies, or any other
successor in which either of the Companies does not cease to exist by operation
of the transaction in question as a matter of law, neither of the Companies
shall be relieved of its obligations hereunder; provided further, that in the
case of dissolution and winding up of the business of either of the Companies,
this Agreement and the obligations hereunder shall be binding upon the trustee
of either of the Companies' assets. It is recognized that, as parent and
subsidiary, the Companies are closely related and that all provisions for
compensation and benefits hereunder refer to compensation and benefits from the
Bank and the Corporation in the aggregate. The Bank and the Corporation shall be
free, without violating this Agreement, to provide salary and other benefits
from either of them in their full discretion, provided that in the aggregate
such salary and benefits comply with this Agreement; provided, however, that all
stock options and provisions for compensation measured by the performance of
stock shall relate to the Corporation's capital stock. The Companies shall be
jointly and severally liable to the Executive for all of the obligations of
either of them under this Agreement and any violation by either the Bank or the
Corporation of any of its obligations hereunder shall be deemed to be a
violation by the other of them. Any legal finding that either the Bank or the
Corporation is not legally required to fulfill any of its obligations under this
Agreement shall not be deemed to relieve the other of them from fulfilling such
obligations.
7
9. Entire Agreement. This Agreement constitutes the entire
----------------
understanding of the Executive and the Companies with respect to the subject
matter hereof and supersedes any and all prior understandings, written or oral,
including any prior employment agreements between the Companies and the
Executive. This Agreement may not be changed, modified, or discharged orally,
but only by an instrument in writing signed by the parties. This Agreement
shall be governed by the laws of the State of Maryland and the invalidity or
unenforceability of any provisions hereof shall in no way affect the validity or
enforceability of any other provision.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on March 23, 2001.
ATTEST: COLUMBIA BANCORP
/s/
_________________________ ---------------------------------------
Xxxx X. Xxxx, Xx.
President and Chief Executive Officer
ATTEST: THE COLUMBIA BANK
/s/
_________________________ ----------------------------------------
Xxxx X. Xxxx, Xx.
President and Chief Executive Officer
WITNESS:
/s/
_________________________ ----------------------------------------
Xxxxxxxx X. Xxxxxxxx
8
