EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 31st day of December, 2000, by and among Eagle Bancorp, Inc., a Maryland
corporation ("EBI"), EagleBank, a Maryland corporation ("EagleBank"), and X.X.
Xxxx ("Xxxx"). EBI and EagleBank are hereinafter sometimes referred to
individually and together as "Eagle."
RECITAL
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Eagle desires to retain Xxxx as the President and Chief Executive
Officer of EagleBank and as the Executive Vice President of EBI and Xxxx 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 December 31, 2000.
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 "Bank Board" means the Board of Directors of
EagleBank.
1.4 "Bank Bylaws" means the Bylaws of EagleBank as in
effect from time to time.
1.5 "Chairman" means the Chairman of the Board of
EagleBank.
1.6 "Code" means the Internal Revenue Code of 1986, as
amended.
1.7 "EBI Board" means the Board of Directors of EBI.
1.8 "EBI Bylaws" means the Bylaws of EBI as in effect
from time to time.
1.9 "Person" means any individual, firm, association,
partnership, corporation, limited liability company,
group, governmental agency or other authority, or
other organization or entity.
2. Employment; Term.
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2.1 Position. Eagle hereby employs Xxxx to serve as the
President and Chief Executive Officer of EagleBank and as the
Executive Vice President of Eagle Bancorp, Inc. Xxxx shall
also be a member of the Bank Board and the EBI Board, subject
to election by the shareholders of EagleBank and EBI, as the
case may be, in accordance with the Bank Bylaws and the EBI
Bylaws, as applicable.
2.2 Term. The term of this Agreement and Xxxx'x employment
hereunder shall commence with the Commencement Date and
continue until December 31, 2003 (the "Term"), unless sooner
terminated in accordance with the provisions of this
Agreement.
3. Duties of Xxxx.
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3.1 Nature and Substance. With respect to EagleBank, Xxxx
shall report directly to the Chairman and shall be under the
direction of the Chairman. With respect to EBI, Xxxx shall
report directly to the Chairman of the Board of EBI and to the
President of EBI and shall be under the direction of them. The
specific powers and duties of Xxxx shall be established,
determined and modified by and within the discretion of the
Bank Board and the EBI Board, including (but not necessarily
limited to):
(a) the coordination and leadership of the efforts of
EagleBank to achieve and maintain any and all necessary and/or
appropriate Bank Regulatory Agency approvals and permissions
prerequisite to its successful continued operation, including
coordination of the professional services of counsel,
accountants and bank consultants;
(b) the preparation and presentation to the Bank Board of
budgets and adherence of EagleBank to those approved by the
Bank Board;
(c) the provision of such reports, updates and other data and
information as may be reasonably required by Eagle and Bank
Regulatory Agencies;
(d) subject to guidelines and/or criteria established by
EagleBank, the hiring, promotion, supervision, retention and
discharge of all EagleBank employees, except for executive
officers of EagleBank at or above the level of Executive Vice
President;
(e) the formulation and implementation of EagleBank employee
personnel policies and benefits, subject to approval by the
Bank Board;
(f) the promotion of the reputation and business of EagleBank
within the community;
(g) the advancement of the business purposes of EagleBank,
including, but not limited to, business development and
customer, depositor and public relations;
(h) participation in and service upon such committees and
subcommittees as may be directed by the Bank Board and/or the
EBI Board, without additional compensation to that set forth
herein below;
(i) supervision of the maintenance of the books and accounts
and the supervision and maintenance of accounts payable and
expenses of EagleBank and the reporting of the status thereof
at each scheduled or called meeting of the Bank Board or any
committee thereof; provided, however, that all expenditures on
behalf of EagleBank shall be approved in accordance with the
terms and conditions of procedures established by the Bank
Board;
(j) such other duties of the President and Chief Executive
Officer of EagleBank as may be enumerated in the Bank Bylaws
and such other duties of Executive Vice President of EBI as
may be enumerated in the EBI Bylaws; and
(k) such other duties and responsibilities as are normally
incident to the subject positions of Xxxx, 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 Bank
Board and/or the EBI Board from time to time.
3.2 Performance of Services. Xxxx 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
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the best of his ability for and on behalf of Eagle and toward
its successful operation. Xxxx shall comply with all laws,
statutes, ordinances, rules and regulations relating to his
employment and duties. During the Term of this Agreement, Xxxx
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. Xxxx agrees that while employed
by Eagle he will not, without the prior written consent of the
Bank Board and the EBI 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 Xxxx'x duties
to Eagle, present a conflict of interest with Eagle, breach
Xxxx'x duty of loyalty or fiduciary duties to Eagle, or
otherwise conflict with the provisions of this Agreement;
provided, however, that Xxxx shall not be prevented from
investing Xxxx'x assets in such form or manner as would not
require any services on the part of Xxxx 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. Xxxx shall promptly notify the EBI Board
and the Bank 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, EagleBank shall pay to Xxxx the following:
4.1 Salary. Beginning on the Commencement Date, Xxxx shall be
paid a salary ("Salary") of One Hundred Ninety-five Thousand
Two Hundred Fifty Dollars ($195,250.00) on an annualized
basis. EagleBank shall pay Xxxx'x Salary in equal installments
in accordance with EagleBank's regular payroll periods as may
be set by EagleBank from time to time. Xxxx'x Salary shall be
further increased from time to time at the discretion of the
Bank Board.
4.2 Bonus. During the Term, Xxxx shall be paid a bonus ("CEO
Bonus") as approved by the Benefits Committee and the Bank
Board.
4.3 Withholding. Payments of Salary and CEO 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. Xxxx shall be entitled to such
vacation and leave as may be provided for under the current
and future leave and vacation policies of EagleBank for
executive officers.
4.5 Office Space. EagleBank will provide customary office
space and office support to Xxxx beginning on the Commencement
Date.
4.6 Car Allowance. EagleBank will pay Xxxx a monthly car
allowance of Seven Hundred Fifty Dollars ($750.00).
4.7 Non-Life Insurance. EagleBank will provide Xxxx with group
health, disability and other insurance as EagleBank may
determine appropriate and arrange for all employees of
EagleBank.
4.8 Life Insurance.
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4.8.1 EagleBank will obtain, and maintain at all times while
this Agreement is in effect, a term life insurance policy (the
"Policy") on Xxxx in the amount of Seven Hundred Fifty
Thousand Dollars ($750,000.00), the particular product and
carrier to be chosen by EagleBank in its discretion. Xxxx
shall have the right to designate the beneficiary of the
Policy. EagleBank will pay the premium for the Policy at the
standard rate. In the event Xxxx is rated and the premium
exceeds the standard rate, Xxxx shall be responsible for
paying the excess, which shall be deducted from Xxxx'x Salary.
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4.8.2 EagleBank may, at its cost, obtain and maintain
"key-man" life insurance on Xxxx in such amount as determined
by the Bank Board from time to time. Xxxx agrees to cooperate
fully and to take all actions reasonably required by EagleBank
in connection with such insurance.
4.9 Expenses. EagleBank shall promptly upon presentation of
proper expense reports therefor reimburse Xxxx, in accordance
with the policies and procedures established from time to time
by EagleBank for its senior executive officers, for all
reasonable and customary travel (other than local use of an
automobile for which Xxxx is being provided the car allowance)
and other out-of-pocket expenses incurred by Xxxx 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. Xxxx shall be entitled to participate
in any and all qualified pension or other retirement plans of
EagleBank which may be applicable to executive personnel of
EagleBank.
4.11 Warrants. Xxxx shall be issued warrants or options to
acquire shares of EBI stock from time to time at the
discretion of the EBI Board following a recommendation by the
Bank Board.
4.12 Other Benefits. While this Agreement is in effect, Xxxx
shall be entitled to all other benefits that EagleBank
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
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Agreement.
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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 Xxxx in
connection with or associated with the services
rendered by Xxxx 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 Xxxx as a result of his negligence, fraud,
malfeasance or misconduct;
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(d) material failure of EagleBank to achieve budget
requirements, performance standards or targets
established annually by the Bank Board, where such
failure is not the result of economic conditions or
lack of appropriate effort and/or due diligence by
Xxxx; or
(e) any of the following conduct on the part of Xxxx
that Xxxx 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 Xxxx to an extent
which materially interferes with or
prevents Xxxx from performing
Xxxx'x duties under this Agreement;
(ii) failure by or the inability of Xxxx
to devote full time, attention and
energy to the performance of Xxxx'x
duties pursuant to this Agreement
(other than by reason of his death
or disability);
(iii) intentional material failure by
Xxxx to carry out the explicit
lawful and reasonable directions,
instructions, policies, rules,
regulations or decisions of the
Bank Board and/or the EBI Board
which are consistent with his
position as President and Chief
Executive Officer or EagleBank
and/or his position as Executive
Vice President of EBI; or
(iv) willful or intentional misconduct
on the part of Xxxx that results in
substantial injury to Eagle or any
of its parent, subsidiaries or
affiliates.
6.2 Termination by Eagle.
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6.2.1 For Cause. Eagle shall have the right to cancel
and terminate this Agreement and Xxxx'x employment
for Cause immediately on written notice, with Xxxx'x
compensation and benefits ceasing as of Xxxx'x last
day of employment, provided, however, that Xxxx 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 Xxxx'x
employment at any time on written notice without
Cause for any or no reason, with Xxxx'x compensation
and benefits ceasing as of Xxxx'x last day of
employment, subject to the provisions of Section 6.4.
and Article 8.
6.3 Termination by Xxxx. Xxxx 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 Bank Board, with
Xxxx'x compensation and benefits ceasing as of Xxxx'x last day
of employment, provided, however, that Xxxx 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 Xxxx'x employment
with Eagle is terminated by Eagle or its successors during the
Term without Cause, EagleBank shall, for the balance of the
Term, continue to pay Xxxx, in the manner set forth below,
Xxxx'x Salary at the rate being paid as of the date of
termination plus the unpaid portion of any CEO Bonus
previously approved as provided in Section 4.2; provided,
however, that Xxxx shall 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 CEO Bonus due Xxxx pursuant to this Section 6.4
shall be paid to Xxxx in installments on the same schedule as
Xxxx was paid immediately prior to the date of termination,
each installment to be the same amount Xxxx would have been
paid under this Agreement if he had not been terminated. In
the event Xxxx breaches any provision of Article 7 of this
Agreement, Xxxx'x entitlement to any Salary or CEO Bonus
payable pursuant to this Section 6.4, if and to the extent not
yet paid, shall thereupon immediately cease and terminate.
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7. Confidentiality; Non-Competition; Non-Interference.
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7.1 Confidential Information. Xxxx, 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. Xxxx hereby covenants and agrees that Xxxx
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 Xxxx'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 Xxxx) or
information that is customarily shown or disclosed.
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 Xxxx, or
otherwise provided to or coming into the possession of Xxxx,
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 Xxxx'x employment, Xxxx
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
EBI or the Chairman, and Xxxx 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.
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7.4.1 Xxxx hereby acknowledges and agrees that,
during the course of employment by Eagle, Xxxx will
become familiar with and involved in all aspects of
the business and operations of Eagle. Xxxx hereby
covenants and agrees that from the Commencement Date
until the earlier to occur of (a) the date one
hundred eighty (180) days after Xxxx'x last day of
employment with Eagle or (b) December 31, 2003, Xxxx
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, 2003, there is a (i) merger or
consolidation of EagleBank with a third party in
which EagleBank is not the survivor, (ii) sale of a
controlling interest in EagleBank to a third party or
(iii) a sale of all or substantially all of the
business or assets of EagleBank to a third party, and
this Agreement is not assigned to such third party or
Xxxx'x employment hereunder is otherwise terminated
by such third party in connection with such
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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. Xxxx hereby covenants and agrees that
from the Commencement Date until the earlier to occur of (a)
the date one hundred eighty (180) days after Xxxx'x last day
of employment with Eagle or (b) December 31, 2003, Xxxx 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.
7.6 Injunction. In the event of any breach or threatened or
attempted breach of any such provision by Xxxx, 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 Xxxx 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.
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7.7.1 Xxxx 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,
directors, officers and employees. Xxxx further
agrees that the restrictions set forth in this
Agreement will not impair or unreasonably restrain
Xxxx'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.
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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 fifty percent (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
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(c) individuals who at the Commencement Date constitute the
entire EBI Board and any new directors whose election by the
EBI Board, 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
EBI Board.
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) Xxxx'x employment with EagleBank 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) Xxxx 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 EagleBank to
the position Xxxx 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
Xxxx held immediately prior to the Change in Control, and
within fifteen (15) days after receiving such notification
Xxxx notifies EBI and EagleBank 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 EBI, EagleBank
and Xxxx but which shall be not more than sixty (60) days
after such notice is given by Xxxx; 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, Xxxx, within
the thirty (30) day period immediately following the last day
of the Action Period, notifies EBI and EagleBank that he is
terminating his employment due to the Change in Control, with
his last day of employment to be mutually agreed to by EBI,
EagleBank and Xxxx but which shall be not more than sixty (60)
days after such notice is given by Xxxx.
8.3 Change in Control Payment. If there is a Change in
Control Termination, Xxxx shall be paid a lump-sum cash
payment (the "Change Payment") by EagleBank equal to 2.99
times Xxxx'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 Xxxx within
forty-five (45) days after his last day of employment.
8.4 Adjustment.
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(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 EagleBank to or
for the benefit of Xxxx (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 EagleBank
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 EagleBank. All fees and
expenses of the Determining Firm will be obligations solely of
EagleBank. The determination of the Determining Firm will be
binding upon EagleBank and Xxxx.
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9. Assignability. Xxxx shall have no right to assign this Agreement or
any of Xxxx'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 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: X.X. Xxxx
00000 Xxx Xxxxxxxxx Xx.
Xxxxx, XX 00000
To: EBI and EagleBank
C/O Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
cc: Xxxxxxx, Xxxxx & Xxxxx
Xxxxx Baris
0000 Xxxxxxxxx Xxxx
Xxxxx X-00
Xxxxxxxx, XX 00000
12. Entire Agreement. This Agreement contains all of the agreements and
understandings between the parties hereto with respect to the
employment of Xxxx 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
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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 Xxxx
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: ______________________
EAGLE BANCORP, INC.
By: ______________________
Title: ______________________
X.X. XXXX
----------------------------
X.X. Xxxx
----------------------------
Date
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