EXHIBIT 10.2
EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 26th day of January 2004 ("Commencement Date"), by and among Eagle Bancorp,
Inc., a Maryland corporation ("EBI"), EagleBank, a Maryland corporation
("EagleBank") and Xxxxxxx X. Xxxxx ("Xxxxx"). EBI and EagleBank are hereinafter
sometimes referred to individually and together as "Eagle."
RECITAL
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Eagle desires to retain Xxxxx as the President and Chief Executive Officer
of EagleBank and as the Executive Vice President of EBI and Xxxxx desires to
accept such employment, all upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the recital, the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement, intending to be legally bound, agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
1.1 "Commencement Date" means the date first written above.
1.2 "Bank Regulatory Agency" means any governmental authority,
regulatory agency, ministry, department, statutory
corporation, central bank or other body of the United States
or of any 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.
2.1 Position. Eagle hereby employs Xxxxx to serve as the
President and Chief Executive Officer of EagleBank and as the
Executive Vice President of EBI. Xxxxx 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 Xxxxx'x employment
hereunder shall commence with the Commencement Date and
continue until January 31, 2007 (the "Term"), unless sooner
terminated in accordance with the provisions of this
Agreement. Eagle and Xxxxx agree that at any time after
January 31, 2006, they will, upon request by the other party,
enter into timely, good faith negotiations with respect to the
renewal of the Agreement upon the expiration of the Term.
2.3 Commencement Date/Bonus. This Agreement shall be null and
void in the event that Xxxxx does not commence full-time
employment with Eagle on or before March 1, 2004. In the event
that Xxxxx commences full-time employment with Eagle on or
before February 1, 2004, Eagle shall, within thirty (30) days
of such commencement, pay Xxxxx a "Signing Bonus" in the
amount of $36,000.00, less any amounts paid to Xxxxx as Salary
for the period prior to February 1, 2004.
2.4 No Conflicting Agreements. Xxxxx represents and warrants
that his performance hereunder shall not conflict with any
other agreements to which he was or is a party, including, but
not limited to, an employment agreement with any prior
employer.
3. Duties of Xxxxx.
3.1 Nature and Substance. With respect to EagleBank, Xxxxx
shall report directly to the Chairman and shall be under the
direction of the Chairman. With respect to EBI, Xxxxx 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 Xxxxx 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 the adherence to those budgets 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; as to executive officers
of EagleBank at or above the level of Executive Vice
President, Xxxxx shall be responsible for their supervision,
and may make recommendations to the Bank Board with respect to
their hiring, promotion and discharge;
(e) the formulation and implementation of EagleBank employee
personnel policies and benefits, subject to approval by the
Bank Board;
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(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, conditions and 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 Xxxxx, 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. Xxxxx agrees to devote his full
business time and attention to the performance of his duties
and responsibilities under this Agreement, and shall use his
best efforts and discharge his duties to the best of his
ability for and on behalf of Eagle and toward its successful
operation. Xxxxx shall comply with all laws, statutes,
ordinances, rules and regulations relating to his employment
and duties. During the Term of this Agreement, Xxxxx 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. Xxxxx 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 Xxxxx'x duties
to Eagle, present a conflict of interest with Eagle, breach
Xxxxx'x duty of loyalty or fiduciary duties to Eagle, or
otherwise conflict with the provisions of this Agreement;
provided, however, that Xxxxx shall not be prevented from
investing Xxxxx'x assets in such form or manner as would not
require any services on the part of Xxxxx 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. Xxxxx 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 Xxxxx the following:
4.1 Salary. Beginning on the Commencement Date, Xxxxx shall be
paid a salary ("Salary") of Two Hundred Twenty Thousand
Dollars ($220,000.00) on an annualized basis. EagleBank shall
pay Xxxxx'x Salary in equal installments in accordance with
EagleBank's regular payroll periods as may be set by EagleBank
from time to time.
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Xxxxx'x Salary shall be further reviewed for potential
increase by the Bank Board on an annual basis.
4.2 Bonus. EagleBank intends to implement a cash incentive
bonus program commencing in fiscal year 2004 ("Senior
Management Bonus Plan"). The Senior Management Bonus Plan is
intended to cover the President, Executive Vice President and
such other employees as EagleBank may determine to include. It
is intended that payments under the Senior Management Bonus
Plan will be based upon EagleBank's performance and individual
officer performance, including achievement of performance
thresholds, such as meeting or surpassing budget, ROAA, ROAE,
growth and such other criteria as the Bank Board may deem
appropriate.
4.3 Withholding. Payments of Salary and Senior Management
Bonus Plan 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. Xxxxx 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 Xxxxx beginning on the
Commencement Date.
4.6 Car Allowance. EagleBank will pay Xxxxx a monthly car
allowance of Seven Hundred Fifty Dollars ($750.00).
4.7 Non-Life Insurance. EagleBank will provide Xxxxx with
group health, disability and other insurance as EagleBank may
determine appropriate for all employees of EagleBank.
4.8 Life Insurance.
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 Xxxxx 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. Xxxxx
shall have the right to designate the beneficiary of the
Policy. EagleBank will pay the premium for the Policy. In the
event Xxxxx is rated and the premium exceeds the standard
rate, the Policy amount shall be lowered to the maximum amount
that can be purchased at the standard rate for a Seven Hundred
Fifty Thousand Dollar ($750,000.00) policy. For example, if
Xxxxx is rated and the standard rate for a Seven Hundred Fifty
Thousand Dollar ($750,000.00) policy would acquire a Six
Hundred Thousand Dollar ($600,000.00) policy, EagleBank would
only be required to purchase the Six Hundred Thousand Dollar
($600,000.00) policy.
4.8.2 EagleBank may, at its cost, obtain and maintain
"key-man" life insurance and/or Bank-Owned Life Insurance on
Xxxxx in such amount as determined by the Bank Board from time
to time. Xxxxx 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 Xxxxx, 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 Xxxxx is being provided the car
allowance) and other out-of-pocket expenses incurred by Xxxxx
in the performance of his duties and responsibilities under
this Agreement and promoting the
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business of EagleBank, including appropriate membership fees,
dues and the cost of attending meetings and conventions.
4.10 Retirement Plans. Xxxxx 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. Xxxxx 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. In that regard, it is acknowledged that concurrent
with the execution of this Agreement Xxxxx will be granted
stock options for fifteen thousand (15,000) shares in
accordance with the EBI 1998 Stock Option Plan, which shall
vest immediately. Additional options may be granted during the
term of this Agreement. It is intended that Xxxxx'x annual
target level of additional options is five thousand (5,000)
shares, subject to achievement of annual budget or other
goals, EagleBank performance and such other criteria as the
EBI Board may deem appropriate. It is intended that the number
of options awarded will increase if the actual performance
exceeds annual budget, other goals, EagleBank performance or
other criteria as set by the Bank Board.
4.12 Other Benefits. While this Agreement is in effect, Xxxxx
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
Agreement.
5.1 Continued Approval by Bank Regulatory Agencies. This
Agreement and all of its terms and conditions, and the
continued operation and effect of this Agreement and Eagle's
continuing obligations hereunder, shall at all times be
subject to the continuing approval of any and all Bank
Regulatory Agencies whose approval is a necessary prerequisite
to the continued operation of Eagle. Should any term or
condition of this Agreement, upon review by any Bank
Regulatory Agency, be found to violate or not be in compliance
with any then-applicable statute or any rule, regulation,
order or understanding promulgated by any Bank Regulatory
Agency, or should any term or condition required to be
included herein by any such Bank Regulatory Agency be absent,
this Agreement will be amended by such deletions, additions or
modifications as may be necessary or appropriate to bring this
Agreement into compliance. In the event that this Agreement
cannot be amended in a manner to bring it into compliance, and
provided that the non-compliance is due to an act or omission
of Xxxxx (that occurred either during or prior to his
employment with Eagle), Eagle may terminate Xxxxx'x
employment.
6. Termination of Agreement. Xxxxx'x employment may be terminated
prior to expiration of the Term as provided below. (For
purposes of this Article 6 and Article 5) termination of
Xxxxx'x employment shall include termination of his membership
on the Bank Board and the EBI Board.
6.1 Definition of Cause. For purposes of this Agreement,
"Cause" means:
(a) any act of theft, fraud, intentional
misrepresentation or similar conduct by Xxxxx in
connection with or associated with the services
rendered by Xxxxx to Eagle under this Agreement;
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(b) any Bank Regulatory Agency action or proceeding
against Xxxxx as a result of his negligence, fraud,
malfeasance or misconduct;
(c) 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
Xxxxx; or
(d) any of the following conduct on the part of Xxxxx
that Xxxxx has not 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 Xxxxx to an extent which
materially interferes with or prevents
Xxxxx from performing Xxxxx'x duties
under this Agreement;
(ii) failure by or the inability of Xxxxx
to devote full time, attention and
energy to the performance of Xxxxx'x
duties pursuant to this Agreement
(other than by reason of his death,
illness or disability);
(iii) intentional material failure by Xxxxx
to carry out the explicit lawful and
reasonable directions, instructions,
policies, rules, regulations or
decisions of the Bank Board or the EBI
Board which are consistent with his
position as President and Chief
Executive Officer of EagleBank and/or
his position as Executive Vice
President of EBI; or
(iv) willful or intentional misconduct on
the part of Xxxxx that results in
substantial injury to Eagle or any of
its parent, subsidiaries or
affiliates.
6.2 Termination by Eagle.
6.2.1 For Cause. Eagle shall have the right to
terminate Xxxxx'x employment for Cause immediately on
written notice, with Xxxxx'x compensation and
benefits ceasing as of Xxxxx'x last day of
employment, provided, however, that Xxxxx 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
terminate Xxxxx'x employment at any time on written
notice without Cause for any or no reason, with
Xxxxx'x compensation and benefits ceasing as of
Xxxxx'x last day of employment, subject to the
provisions of Section 6.4. and Article 8.
6.3 Termination by Xxxxx. Xxxxx shall have the right to
terminate his employment at any time on sixty (60) days prior
written notice to the Bank Board, with Xxxxx'x compensation
and benefits ceasing as of Xxxxx'x last day of employment,
provided, however, that Xxxxx 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 Xxxxx'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 Xxxxx, in the manner set
forth below, Xxxxx'x Salary
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at the rate being paid as of the date of termination plus the
unpaid portion of any Senior Management Bonus Plan bonus
previously approved as provided in Section 4.2; provided,
however, that Xxxxx 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) Xxxxx'x employment is
terminated pursuant to Section 5.1, or (iii) there is a Change
in Control Termination (as defined in Section 8.2). Any Salary
and Senior Management Bonus Plan bonus due Xxxxx pursuant to
this Section 6.4 shall be paid to Xxxxx in installments on the
same schedule as Xxxxx was paid immediately prior to the date
of termination, each installment to be the same amount Xxxxx
would have been paid under this Agreement if he had not been
terminated. In the event Xxxxx breaches any provision of
Article 7 of this Agreement, Xxxxx'x entitlement to any Salary
or Senior Management Bonus Plan bonus payable pursuant to this
Section 6.4, if and to the extent not yet paid, shall
thereupon immediately cease and terminate.
7. Confidentiality; Non-Competition; Non-Interference.
7.1 Confidential Information. Xxxxx, 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. Xxxxx hereby covenants and agrees that
Xxxxx 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 Xxxxx'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 Xxxxx) or
information that is customarily shown or disclosed. Xxxxx
further covenants and agrees that Xxxxx shall not at any time,
directly or indirectly, disclose to any Person, including but
not limited to any other employee of EBI or Eagle, any of the
terms of this Agreement.
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 Xxxxx, or
otherwise provided to or coming into the possession of Xxxxx,
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 Xxxxx'x employment,
Xxxxx 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 Xxxxx shall not retain in any
tangible form any such Document or any summary, compilation,
synopsis or abstract of any Document or Eagle Information.
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7.4 Non-Competition.
7.4.1 Xxxxx hereby acknowledges and agrees that,
during the course of employment by Eagle, Xxxxx will
become familiar with and involved in all aspects of
the business and operations of Eagle. Xxxxx hereby
covenants and agrees that from the Commencement Date
until the earlier to occur of (a) the date one
hundred eighty (180) days after Xxxxx'x last day of
employment with Eagle or (b) January 31 2007, Xxxxx
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
January 31, 2007, 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
Xxxxx'x employment hereunder is otherwise terminated
by such third party in connection with such merger,
consolidation or sale. Further, mere ownership of
less than two percent (2%) of the securities of any
publicly held corporation shall not constitute a
violation of this Section.
7.5 Non-Interference. Xxxxx hereby covenants and agrees that
during his employment, and for a period of twelve (12) months
after Xxxxx'x last date of employment with Eagle, Xxxxx will
not, directly or indirectly, for himself or any other Person
(whether as a proprietor, owner, agent, officer, director,
shareholder, partner, principal, member, employee, contractor,
consultant or any other capacity), induce or attempt to induce
any customers, suppliers, officers, employees, contractors,
consultants, agents or representatives of, or any other person
that has a business relationship with, Eagle or any of its
parent, subsidiaries and affiliates to discontinue, terminate
or reduce the extent of their relationship with Eagle and/or
any such parent, subsidiary or affiliate or to take any action
that would disrupt or otherwise be disadvantageous to any such
relationship, nor will Xxxxx otherwise solicit any customer or
employee of Eagle on behalf of himself or any other Person.
7.6 Injunction. In the event of any breach or threatened or
attempted breach of this Article 7 by Xxxxx, 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
Xxxxx and each and every other Person concerned therein from
the continuation of such violative acts and (ii) a decree for
specific performance of the applicable provisions of this
Agreement.
7.7 Reasonableness.
7.7.1 Xxxxx 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
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employees. Xxxxx further agrees that the restrictions
set forth in this Agreement will not impair or
unreasonably restrain Xxxxx'x ability to earn a
livelihood.
7.7.2 If any court of competent jurisdiction should
determine that the duration, geographical area or
scope of any provision or restriction set forth in
this Article 7 exceeds the maximum duration,
geographic area or scope that is reasonable and
enforceable under applicable law, the parties agree
that said provision shall automatically be modified
and shall be deemed to extend only over the maximum
duration, geographical area and/or scope as to which
such provision or restriction said court determines
to be valid and enforceable under applicable law,
which determination the parties direct the court to
make, and the parties agree to be bound by such
modified provision or restriction.
8. Change in Control.
8.1 Definition. "Change in Control" means and shall be deemed
to have occurred if:
(a) there shall be consummated any consolidation or merger of
EBI in which EBI is not the continuing or surviving
corporation or pursuant to which shares of EBI's capital stock
are converted into cash, securities or other property other
than a consolidation or merger of EBI in which the holders of
EBI's voting stock immediately before the consolidation or
merger shall, upon consummation of the consolidation or
merger, own at least 50% of the voting stock of the surviving
corporation, or any sale of all or substantially all of the
assets of EBI;
(b) any person (within the meaning of Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) shall after the Commencement Date become
the beneficial owner (within the meaning of Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of
securities of EBI representing fifty-one percent (51%) or more
of the voting power of then all outstanding securities of EBI
entitled to vote generally in the election of directors of EBI
(including, without limitation, any securities of EBI that any
such person has the right to acquire pursuant to any
agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, which shall be deemed beneficially
owned by such person); or
(c) individuals who at the Commencement Date constitute the
entire 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) Xxxxx'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) Xxxxx 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 Xxxxx 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
Xxxxx held immediately prior to the Change in Control, and
within fifteen (15) days after receiving such notification
Xxxxx
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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 Xxxxx but which shall be not more than sixty (60) days
after such notice is given by Xxxxx; 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, Xxxxx, 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 Xxxxx but which shall be not more than sixty
(60) days after such notice is given by Xxxxx.
8.3 Change in Control Payment. If there is a Change in Control
Termination, Xxxxx shall be paid a lump-sum cash payment (the
"Change Payment") by EagleBank equal to 2.99 times Xxxxx'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 Xxxxx within forty-five (45)
days after his last day of employment.
9. Assignability. Xxxxx shall have no right to assign this Agreement or
any of Xxxxx'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 effect
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
sent by facsimile at the address or number set forth below provided
however, that notices given by facsimile shall not be effective unless
either a duplicate copy of such facsimile notice is promptly given by
depositing same in a United 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
Article; additionally, any notice given by facsimile shall be deemed
received on the next business day if such notice is received after 5:00
p.m. (recipient's time) or on a non-business day; or (3) three (3)
business days after the same have been deposited in a United States
post office with first-class certified mail, return receipt, postage
prepaid and addressed to the parties as set forth below; or (4) the
next business day after same have been deposited with a national
overnight delivery service reasonably approved by the parties (Federal
Express and DHL WorldWide Express being deemed approved by the
parties), postage prepaid, addressed to the parties as set forth below
with next-business-day delivery guaranteed, provided that the sending
party received a confirmation of delivery from the delivery service
provider. The address of a party set forth below may be changed by that
party by written notice to the other from time to time pursuant to this
Article.
To: Xxxxxxx X. Xxxxx
00000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
Facsimile: 301/299-0646
To: EBI and EagleBank
C/O Xxxxxx X. Xxxx
0000 Xxxxxxxx Xxx.
Xxxxxxxx, XX 00000
Facsimile: 301/986-8529
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cc: Xxxx X. Xxxxxx, Esquire
Shulman, Rogers, Gandal, Pordy & Xxxxx, P.A.
00000 Xxxxxxxxx Xxxx, Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Facsimile: 301/230-2891
12. Entire Agreement. This Agreement contains all of the agreements and
understandings between the parties hereto with respect to the
employment of Xxxxx 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 had been executed with the illegal, invalid or unenforceable
portion thereof eliminated.
15. Amendment; Waiver. Neither this Agreement nor any provision hereof
may be amended, modified, changed, waived, discharged or terminated
except by an instrument in writing signed by the party against which
enforcement of the amendment, modification, change, waiver, discharge
or termination is sought. The failure of either party at any time or
times to require performance of any provision hereof shall not in any
manner affect the right at a later time to enforce the same. No waiver
by either party of the breach of any term, provision or covenant
contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be, or construed as, a
further or continuing waiver of any such breach, or a waiver of the
breach of any other term, provision or covenant contained in this
Agreement.
16. Gender and Tense. As used in this Agreement, the masculine,
feminine and neuter gender, and the singular or plural number, shall
each be deemed to include the other or others whenever the context so
indicates.
17. Binding Effect. This Agreement is and shall be binding upon, and
inures to the benefit of, Eagle, its successors and assigns, and Xxxxx
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:
----------------------------
Date:
-----------------------------
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EAGLE BANCORP, INC.
By:
-------------------------------
Title:
----------------------------
Date:
-----------------------------
XXXXXXX X. XXXXX
-----------------------------------
Xxxxxxx X. Xxxxx
Date:
-----------------------------
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