EXHIBIT 10.3
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT ("Agreement") is made and entered into as of
the 31st day of December, 2000, by and between EagleBank, a Maryland corporation
("Eagle"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇").
RECITAL
-------
Eagle desires to retain ▇▇▇▇▇▇ as the Executive Vice President and
Chief Operating Officer of Eagle and ▇▇▇▇▇▇ 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 "Board" means the Board of Directors of Eagle.
1.4 "Bylaws" means the Bylaws of Eagle as in effect from
time to time.
1.5 "EBI" means Eagle Bancorp, Inc., a Maryland
corporation
1.6 "Person" means any individual, firm, association,
partnership, corporation, limited liability company,
group, governmental agency or other authority, or
other organization or entity.
1.7 "President" means the President and Chief Executive
Officer of Eagle.
2. Employment; Term.
-----------------
2.1 Position. Eagle hereby employs ▇▇▇▇▇▇ to serve as the
Executive Vice President and Chief Operating Officer of Eagle.
▇▇▇▇▇▇ shall also be a member of the Board, subject to
election by the shareholders of Eagle in accordance with the
Bylaws.
2.2 Term. The term of this Agreement and ▇▇▇▇▇▇'▇ 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.
1
3. Duties of ▇▇▇▇▇▇.
-----------------
3.1 Nature and Substance. ▇▇▇▇▇▇ shall report directly to the
President and shall be under the direction of the President.
The specific powers and duties of ▇▇▇▇▇▇ shall be established,
determined and modified by and within the discretion of the
Board, including (but not necessarily be limited to):
(a) the preparation and presentation to the Board of budgets
and adherence of Eagle to those approved by the Board;
(b) the provision of such reports, updates and other data and
information as may be reasonably required by Eagle and Bank
Regulatory Agencies;
(c) subject to guidelines and/or criteria established by
Eagle, the hiring, promotion, supervision, retention and
discharge of all employees, except for executive officers of
Eagle at or above the level of Executive Vice President;
(d) the formulation and implementation of employee personnel
policies and benefits, subject to approval by the Board;
(e) the promotion of the reputation and business of Eagle
within the community;
(f) the advancement of the business purposes of Eagle,
including, but not limited to, business development and
customer, depositor and public relations;
(g) participation in and service upon such committees and
subcommittees as may be directed by the Board, without
additional compensation to that set forth herein below;
(h) such other duties of the Executive Vice President and
Chief Operating Officer as may be enumerated in the Bylaws;
and
(i) such other duties and responsibilities as are normally
incident to the position of Executive Vice President and Chief
Operating Officer, 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 Board from time to time.
3.2 Performance of Services. ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ shall comply with all laws, statutes,
ordinances, rules and regulations relating to his employment
and duties. During the Term of this Agreement, ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ agrees that while
employed by Eagle he will not, without the prior written
consent of the 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 ▇▇▇▇▇▇'▇ duties
to Eagle, present a conflict of interest with Eagle, breach
▇▇▇▇▇▇'▇ duty of loyalty or fiduciary duties to Eagle, or
otherwise conflict with the provisions of this Agreement;
provided, however, that ▇▇▇▇▇▇ shall not be prevented from
investing ▇▇▇▇▇▇'▇ assets in such form or manner as would not
require any services on the part of ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ shall promptly notify the Board of
any Outside Arrangement and provide Eagle with any written
agreement in connection therewith.
2
4. Compensation and Benefits. As full compensation for all
services rendered pursuant to this Agreement and the covenants
contained herein, Eagle shall pay to ▇▇▇▇▇▇ the following:
4.1 Salary. Beginning on the Commencement Date, ▇▇▇▇▇▇ shall
be paid a salary ("Salary") of One Hundred Sixty Thousand
Dollars ($160,000.00) on an annualized basis. Eagle shall pay
▇▇▇▇▇▇'▇ Salary in equal installments in accordance with
Eagle's regular payroll periods as may be set by Eagle from
time to time. ▇▇▇▇▇▇'▇ Salary shall be further increased from
time to time at the discretion of the Board.
4.2 Bonus. During the Term, ▇▇▇▇▇▇ shall be paid a bonus ("COO
Bonus") as approved by the Benefits Committee and the Board.
4.3 Withholding. Payments of Salary and COO 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. ▇▇▇▇▇▇ shall be entitled to such
vacation and leave as may be provided for under the current
and future leave and vacation policies of Eagle for executive
officers.
4.5 Office Space. Eagle will provide customary office space
and office support to ▇▇▇▇▇▇ beginning on the Commencement
Date.
4.6 Car Allowance. Eagle will pay ▇▇▇▇▇▇ a monthly car
allowance of Six Hundred Fifty Dollars ($650.00).
4.7 Non-Life Insurance. Eagle will provide ▇▇▇▇▇▇ with group
health, disability and other insurance as Eagle may determine
appropriate and arrange for all employees of Eagle.
4.8 Life Insurance.
----------------
4.8.1 Eagle will obtain, and maintain at all times while this
Agreement is in effect, a term life insurance policy (the
"Policy") on ▇▇▇▇▇▇ in the amount of Six Hundred Thousand
($600,000.00), the particular product and carrier to be chosen
by Eagle in its discretion. ▇▇▇▇▇▇ shall have the right to
designate the beneficiary of the Policy. Eagle will pay the
premium for the Policy. In the event ▇▇▇▇▇▇ 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 Six Hundred Thousand ($600,000.00) policy.
For example, if ▇▇▇▇▇▇ is rated and the standard rate for a
Six Hundred Thousand ($600,000.00) policy would acquire a Five
Hundred Thousand ($500,000.00) policy, Eagle would only be
required to purchase the Five Hundred Thousand ($500,000.00)
policy.
4.8.2 Eagle may, at its cost, obtain and maintain "key-man"
life insurance on ▇▇▇▇▇▇ in such amount as determined by the
Board from time to time. ▇▇▇▇▇▇ agrees to cooperate fully and
to take all actions reasonably required by Eagle in connection
with such insurance.
4.9 Expenses. Eagle shall promptly upon presentation of proper
expense reports therefor reimburse ▇▇▇▇▇▇, in accordance with
the policies and procedures established from time to time by
Eagle for its senior executive officers, for all reasonable
and customary travel (other than local use of an automobile
for which ▇▇▇▇▇▇ is being provided the car allowance) and
other out-of-pocket expenses incurred by ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ shall be entitled to participate
in any and all qualified pension or other retirement plans of
Eagle which may be applicable to executive personnel of Eagle.
4.11 Warrants. ▇▇▇▇▇▇ shall be issued warrants or options to
acquire shares of EBI stock from time to time at the
discretion of the Board of Directors of EBI following a
recommendation by the Board.
3
4.12 Other Benefits. While this Agreement is in effect, ▇▇▇▇▇▇
shall be entitled to all other benefits that Eagle 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 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 ▇▇▇▇▇▇ in
connection with or associated with the services
rendered by ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ as a result of his negligence, fraud,
malfeasance or misconduct;
(d) material failure of Eagle to achieve budget
requirements, performance standards or targets
established annually by the Board, where such failure
is not the result of economic conditions or lack of
appropriate effort and/or due diligence by ▇▇▇▇▇▇; or
(e) any of the following conduct on the part of
▇▇▇▇▇▇ that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ to an extent
which materially interferes with or
prevents ▇▇▇▇▇▇ from performing
▇▇▇▇▇▇'▇ duties under this
Agreement;
(ii) failure by or the inability of
▇▇▇▇▇▇ to devote full time,
attention and energy to the
performance of ▇▇▇▇▇▇'▇ duties
pursuant to this Agreement (other
than by reason of his death or
disability);
4
(iii) intentional material failure by
▇▇▇▇▇▇ to carry out the explicit
lawful and reasonable directions,
instructions, policies, rules,
regulations or decisions of the
Board which are consistent with his
position as Executive Vice
President and Chief Operating
Officer; or
(iv) willful or intentional misconduct
on the part of ▇▇▇▇▇▇ 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 cancel
and terminate this Agreement and ▇▇▇▇▇▇'▇ employment
for Cause immediately on written notice, with
▇▇▇▇▇▇'▇ compensation and benefits ceasing as of
▇▇▇▇▇▇'▇ last day of employment, provided, however,
that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇
employment at any time on written notice without
Cause for any or no reason, with ▇▇▇▇▇▇'▇
compensation and benefits ceasing as of ▇▇▇▇▇▇'▇ last
day of employment, subject to the provisions of
Section 6.4. and Article 8.
6.3 Termination by ▇▇▇▇▇▇. ▇▇▇▇▇▇ 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 Board,
with ▇▇▇▇▇▇'▇ compensation and benefits ceasing as of ▇▇▇▇▇▇'▇
last day of employment, provided, however, that ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇'▇
employment with Eagle is terminated by Eagle or its successors
during the Term without Cause, Eagle shall, for the balance of
the Term, continue to pay ▇▇▇▇▇▇, in the manner set forth
below, ▇▇▇▇▇▇'▇ Salary at the rate being paid as of the date
of termination plus the unpaid portion of any COO Bonus
previously approved as provided in Section 4.2; provided,
however, that ▇▇▇▇▇▇ 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 COO Bonus due ▇▇▇▇▇▇ pursuant to this Section 6.4 shall be
paid to ▇▇▇▇▇▇ in installments on the same schedule as ▇▇▇▇▇▇
was paid immediately prior to the date of termination, each
installment to be the same amount ▇▇▇▇▇▇ would have been paid
under this Agreement if he had not been terminated. In the
event ▇▇▇▇▇▇ breaches any provision of Article 7 of this
Agreement, ▇▇▇▇▇▇'▇ entitlement to any Salary or COO 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. ▇▇▇▇▇▇, 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 ▇▇▇▇ 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. ▇▇▇▇▇▇ hereby covenants and agrees that
▇▇▇▇▇▇ shall not at any time, directly or indirectly,
disclose, divulge, reveal, report, publish, or transfer any
Confidential Information to any Person, or
5
use Confidential Information in any way or for any purpose,
except as required in the course of ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇) 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 ▇▇▇▇▇▇, or
otherwise provided to or coming into the possession of ▇▇▇▇▇▇,
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 ▇▇▇▇▇▇'▇ employment,
▇▇▇▇▇▇ 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 Eagle, and ▇▇▇▇▇▇ 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.
----------------
7.4.1 ▇▇▇▇▇▇ hereby acknowledges and agrees that,
during the course of employment by Eagle, ▇▇▇▇▇▇ will
become familiar with and involved in all aspects of
the business and operations of Eagle. ▇▇▇▇▇▇ hereby
covenants and agrees that from the Commencement Date
until the earlier to occur of (a) the date one
hundred eighty (180) days after ▇▇▇▇▇▇'▇ last day of
employment with Eagle or (b) December 31, 2003,
▇▇▇▇▇▇ 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 Eagle with a third party in which
Eagle is not the survivor, (ii) sale of a controlling
interest in Eagle to a third party or (iii) a sale of
all or substantially all of the business or assets of
Eagle to a third party, and this Agreement is not
assigned to such third party or ▇▇▇▇▇▇'▇ 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. ▇▇▇▇▇▇ hereby covenants and agrees that
from the Commencement Date until the earlier to occur of (a)
the date one hundred eighty (180) days after ▇▇▇▇▇▇'▇ last day
of employment with Eagle or (b) December 31, 2003, ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇, 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
6
injunctive relief enjoining and restraining ▇▇▇▇▇▇ 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.
---------------
7.7.1 ▇▇▇▇▇▇ 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. ▇▇▇▇▇▇ further
agrees that the restrictions set forth in this
Agreement will not impair or unreasonably restrain
▇▇▇▇▇▇'▇ 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 Board of Directors of EBI and any new directors whose
election by the Board of Directors of EBI, 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 Board of Directors of EBI.
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) ▇▇▇▇▇▇'▇ employment with Eagle 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) ▇▇▇▇▇▇ 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
7
comparable position (with comparable compensation and
benefits) with Eagle to the position ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ held immediately prior to the
Change in Control, and within fifteen (15) days after
receiving such notification ▇▇▇▇▇▇ notifies Eagle 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 Eagle and ▇▇▇▇▇▇ but which shall be not more than
sixty (60) days after such notice is given by ▇▇▇▇▇▇; 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, ▇▇▇▇▇▇, within
the thirty (30) day period immediately following the last day
of the Action Period, notifies Eagle that he is terminating
his employment due to the Change in Control, with his last day
of employment to be mutually agreed to by Eagle and ▇▇▇▇▇▇ but
which shall be not more than sixty (60) days after such notice
is given by ▇▇▇▇▇▇.
8.3 Change in Control Payment. If there is a Change in Control
Termination, ▇▇▇▇▇▇ shall be paid a lump-sum cash payment (the
"Change Payment") equal to 2.99 times ▇▇▇▇▇▇'▇ 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 ▇▇▇▇▇▇ within forty-five (45) days after
his last day of employment.
8.4 Adjustment.
-----------
(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 Eagle to or for
the benefit of ▇▇▇▇▇▇ (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 Eagle
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 Eagle. All fees and expenses
of the Determining Firm will be obligations solely of Eagle.
The determination of the Determining Firm will be binding upon
Eagle and ▇▇▇▇▇▇.
9. Assignability. ▇▇▇▇▇▇ shall have no right to assign this Agreement
or any of ▇▇▇▇▇▇'▇ 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 (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
8
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To: EagleBank
C/O ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
cc: ▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇▇ Baris
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
12. Entire Agreement. This Agreement contains all of the agreements and
understandings between the parties hereto with respect to the
employment of ▇▇▇▇▇▇ 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 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 ▇▇▇▇▇▇
and his heirs, executors, administrators, and personal and legal
representatives.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
EAGLEBANK
By: ______________________
Title: ______________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Date
10