EXHIBIT 10.7
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of November 15, 1996, between
F&M Bancorp, a Maryland corporation and thrift holding company, Home Federal
Savings Bank (the "Bank"), a federally-chartered savings bank which is the
wholly-owned subsidiary of F&M Bancorp, and Xxxxxxx X. Xxxxxxx, Xx. (the
"Executive"). In consideration of the mutual covenants herein contained and of
the mutual benefits herein provided, F&M Bancorp, the Bank and the Executive
agree as follows:
1. Employment. (a) F&M Bancorp and the Bank will employ the Executive,
and the Executive accepts employment by F&M Bancorp and the Bank, on the terms
and conditions herein contained.
(b) The period during which F&M Bancorp and the Bank will employ the
Executive (the "Employment Period") shall commence on the Effective Date of the
merger of Home Federal Corporation with and into F&M Bancorp (the "Merger") as
defined in Section 1 of the Plan and Agreement to Merge dated as of April 2,
1996 by and among F&M Bancorp and Home Federal Corporation (the "Plan"). The
effectiveness of this Agreement is conditioned upon the completion of the
Merger pursuant to the Plan.
(c) The Employment Period shall continue until and shall cease and
terminate upon the earlier of (i) the close of business on the day which is
three years after the Effective Date of the Merger or (ii) the death or
substantially total disability of the Executive; provided, however, that the
Executive may terminate this Agreement at any time without liability except
pursuant to paragraphs 4, 12 and 13 hereof, and without relinquishing or
forfeiting executive's rights under paragraphs 7 and 13.
2. Duties and Functions. (a) During the Employment Period, the Executive
shall exercise authority and perform executive duties as a Vice President of
F&M Bancorp and as the President and Chief Executive Officer of the Bank, and
shall perform such additional duties, as may be assigned or delegated to him
from time to time, by the Boards of Directors of F&M Bancorp and the Bank.
(b) During the Employment Period, the Executive will (i) devote his full
time and efforts to the businesses of F&M Bancorp and the Bank and will not
engage in consulting work or any trade or business for his own account or for
or on behalf of any other person, firm or corporation which competes, conflicts
or interferes with the performance of his duties hereunder in any way and (ii)
accept such office or offices to which he may be elected by the Boards of
Directors of F&M Bancorp and the Bank; provided that the performance of the
duties of such office or offices shall be consistent with the scope of the
duties provided for in subparagraph (a) of this paragraph 2.
3. Compensation. (a) As compensation for his services to the Bank
hereunder, the Bank agrees to pay the Executive a salary at the rate of at
least $111,000 per annum, payable in equal monthly installments, or on such
other periodic basis as may be mutually agreed upon, subject to normal policies
of the Bank as to salary payments or suspensions thereof during periods of
disability. Such salary and the Executive's performance shall be subject to
normal periodic review by the Bank's board of directors at least annually for
increases in salary, based on corporate policy and contributions to the
enterprise. Such review shall be documented in the minutes of the board of
directors' meetings. The Executive shall only receive compensation from the
Bank for performance of executive duties as an officer of the Bank. In the
event the Executive performs services for F&M Bancorp, if any, F&M Bancorp will
compensate the Executive consistent with F&M Bancorp's policies.
(b) In addition to his salary provided by the foregoing, the Executive
shall be entitled to receive benefits under any bonus, profit-sharing,
retirement, group life, disability, sickness, accident or health insurance
programs of the Bank (or under any such programs in which employees of the Bank
are eligible to participate) which may now or, if not terminated, shall
hereafter be in effect, or in any other or additional such programs which may
be established by the Bank (or any program in which employees of the Bank are
eligible to participate), as and to the extent any such programs are or may
from time to time be in effect. The Executive shall be entitled to reasonable
vacations and sick leave, as may be established by Bank policy.
(c) The Bank will reimburse the Executive for all authorized expenses
properly incurred by him in the performance of his duties hereunder.
4. Competition; Confidential Information. The Executive, F&M Bancorp and
the Bank recognize that due to the nature of his employment, and his
relationship with F&M Bancorp and the Bank, the Executive has had and will have
access to, and has acquired and will acquire, and has assisted and will assist
in developing, confidential and proprietary information relating to the
business and operations of F&M Bancorp and the Bank and their affiliates,
including, without limiting the generality of the foregoing, information with
respect to their present and prospective services, systems, clients, customers,
agents, and sales and marketing methods. The Executive acknowledges that such
information has been and will be of central importance to F&M Bancorp's and the
Bank's business and that disclosure of it to or its use by others could cause
substantial loss to F&M Bancorp and the Bank. The Executive, F&M Bancorp and
the Bank also recognize that an important part of the Executive's duties will
be to develop good will for F&M Bancorp and the Bank through his personal
contact with clients of F&M Bancorp and the Bank, and that there is a danger
that this good will, a proprietary asset of F&M Bancorp and the Bank, may
follow the Executive if and when his relationship with F&M Bancorp and the Bank
is terminated. The Executive accordingly agrees as follows:
(a) The Executive agrees that, upon termination of his employment hereunder
prior to the expiration of the stated Employment Period provided in paragraphs
1(b) and (c), for any reason other than (i) for termination by F&M Bancorp and
the Bank without cause or (ii) for termination after a Change in Control, as
provided for in paragraph 6:
(i) The Executive will not directly or indirectly accept employment in
Frederick or Washington County, Maryland with any other banking institution or
affiliate thereof for a period of two years from the date of such termination,
or in connection with any subsequent employment outside of Frederick or
Washington County, Maryland solicit any of the banking business of clients or
customers of the Bank or any of its affiliates in Frederick or Washington
County, Maryland, at the time of said termination for a period of two years
from the date of such termination.
(ii) The Executive will not in connection with any subsequent
employment outside of Frederick or Washington County, Maryland directly or
indirectly solicit the banking business of any potential client who had been
identified and discussed as such within the Bank by the time of such
termination for a period of two years from such termination. In the event that
the Executive violates the provisions of this subparagraph without knowledge of
such violation, upon notice from the Bank informing him of the nature of such
violation, the Executive shall immediately terminate any actions which
constitute such violation.
(b) After the end of the Employment Period, the Executive shall not retain
copies of any documents (including without limitation customer lists)
containing any such trade secrets or confidential or proprietary information of
the Bank or its affiliates.
(c) It is understood and agreed by the parties hereto that nothing herein
shall restrict or limit in any way the Executive from any of the following
activities at any time following a termination of Executive's employment
hereunder: (i) the practice of law or accounting, including the representation
of banking institutions and their affiliates, without restriction as to their
location; (ii) provision of professional services relating to real estate
brokerage, real estate consultation or problem asset consultation, including
the representation of banking institutions and their affiliates, without
restriction as to their location; (iii) provision of professional services as a
consultant or adviser for any banking institution or affiliate, including
relating to the development and implementation of policies and procedures
dealing with or related to problem assets, asset classification, asset review,
real estate lending, and legal and accounting matters, without restriction as
to their location.
(d) It is recognized that damages in the event of breach of any provision
of this paragraph 4 by the Executive would be difficult, if not impossible, to
ascertain, and it is therefore agreed that the Bank, in addition to and without
limiting any other remedy or right it may have, shall have the right to an
injunction or other equitable relief in any court of competent jurisdiction,
enjoining any such breach; and the Executive hereby waives any and all defenses
he may have on the ground of the lack of jurisdiction or competence of the
court to grant such an injunction or other equitable relief. The existence of
this right shall not preclude any other rights and remedies at law or in equity
which the Bank may have.
5. Termination for Cause. Nothing in this Agreement shall be construed to
prevent the Bank from terminating the Executive's employment hereunder and the
Employment Period at any time, for cause. As used in this Agreement: (i) a
termination for cause shall mean a termination for personal dishonesty,
incompetence, willful misconduct, breach of fiduciary duty involving personal
profit, intentional failure to perform stated duties, willful violation of any
law, rule, or regulation (other than traffic violations or similar offenses) or
final cease and desist order, after notice and an opportunity to cure the
alleged breach, or a material breach by the Executive of any agreement on his
part made herein; and any such termination shall not be construed a breach of
this Agreement by the Bank; and (ii) a termination by the Bank without cause
shall mean any termination by the Bank prior to the end of the Employment
Period for reasons other than as specified in clause (i). No compensation
shall be paid to the Executive subsequent to the Executive's termination for
cause.
6. Termination upon a Change in Control.
(a) This Agreement shall terminate, and the Bank or any successor
corporation to the Bank shall pay the Executive the amount provided in
paragraph 7(a), if:
(i) After a Change in Control, the Bank or any successor corporation
of the Bank breaches any provision of this Agreement, including without
limitation a reduction in the Executive's total compensation from that provided
in paragraph 3, or a significant reduction in the nature or scope of the duties
and functions of the Executive from those contemplated in paragraph 2; or
(ii) After a Change in Control, the Executive is relocated by the Bank
without his express written consent to perform the services and duties required
by this Agreement at any place outside Washington County, Maryland with the
exception of the principal office of F&M Bancorp in Frederick, Maryland; or
(iii) After a Change in Control, any successor corporation of the Bank
does not agree to assume the obligations of the Bank under this Agreement.
(b) A "Change in Control," as used in this Agreement, shall be deemed to
have occurred when:
(i) Acquisition by a person, or by persons acting in a group, of
securities of the Bank, or of F&M Bancorp, representing 25% or more of the
combined voting power of the then outstanding voting securities of the Bank or
of F&M Bancorp; or
(ii) A change in the membership of the Board of Directors of the Bank,
or of F&M Bancorp, such that during any period of two consecutive years,
individuals who at the beginning of such period constituted such Board of
Directors ceased for any reason to constitute at least a majority thereof
unless the election of each director who was not a director at the beginning of
the period was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of the period.
(iii) The consummation of the Merger in accordance with the terms of
the Plan shall not constitute a "Change of Control" for purposes of this
Agreement.
7. Severance Payments.
(a) If the Executive terminates his employment during the Employment Period
within twelve months after a Change of Control pursuant to paragraph 6, or is
terminated by F&M Bancorp or the Bank, during the Employment Period after a
Change in Control pursuant to paragraph 6, the Bank will pay the Executive, in
lieu of any amounts payable under paragraph 3, an amount equal to three times
the sum of (i) the Executive's average annual base salary for the five years
immediately before the Change in Control and (ii) the average of the bonuses
paid to the Executive over the five years immediately before the Change in
Control (including years in which no bonus was awarded). Such payment shall be
made in 36 equal monthly installments, beginning on the first day of the month
following the month during which this Agreement is terminated.
(b) If this Agreement is terminated within one year after the Effective
Date of the Merger by the Executive, or by F&M Bancorp or the Bank for any
reason other than for cause (as defined in paragraph 5) , the Bank will pay the
Executive, in lieu of any amounts payable under paragraph 3, an amount equal to
three times the sum of (i) the Executive's average annual base salary for the
five years immediately before such termination and (ii) the average of the
bonuses paid to the Executive over the five years immediately before such
termination (including years in which no bonus was awarded). Such payment
shall be made in equal monthly installments for the remainder of the Employment
Period, beginning on the first day of the month following the month during
which this Agreement is terminated.
(c) If the Executive is terminated by F&M Bancorp or the Bank for any
reason other than for cause (as defined in paragraph 5) more than one year
after the Effective Date of the Merger but before the expiration of the
Employment Period, the Bank will pay the Executive, in lieu of any amounts
payable under paragraph 3, an amount equal to (i) two times the sum of (x) the
Executive's average annual base salary for the five years immediately before
such termination and (y) the average of the bonuses paid to the Executive over
the five years immediately before such termination (including years in which no
bonus was awarded) multiplied by (ii) a fraction, the numerator of which shall
be the number of months remaining in the Employment Period, rounded down to the
nearest whole month, and the denominator of which shall be 24; provided,
however, that notwithstanding the foregoing, the Executive shall be entitled to
receive 1.5 times the sum of (x) the Executive's average annual base salary for
the five years immediately before such termination and (y) the average of the
bonuses paid to the Executive over the five years immediately before such
termination (including years in which no bonus was awarded). Such payment
shall be made in equal monthly installments for the remainder of the Employment
Period, beginning on the first day of the month following the month during
which this Agreement is terminated.
(d) If the Executive remains employed by F&M Bancorp and the Bank and
exercises authority and performs executive duties as a Vice President of F&M
Bancorp and as the President and Chief Executive Officer of the Bank for the
remainder of the Employment Period and is terminated after the expiration of
the Employment Period, the Bank will pay the Executive an amount equal to 1.5
times the sum of (x) the Executive's average annual base salary for the five
years immediately before such termination and (y) the average of the bonuses
paid to the Executive over the five years immediately before such termination
(including years in which no bonus was awarded). Such payment shall be made in
18 equal monthly installments, beginning on the first day of the month
following the month during which the Executive's employment is terminated.
8. Binding Agreement. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, personal representatives,
successors and assigns.
9. Entire Agreement. This Agreement contains the entire understanding of
the Executive, the Bank and any affiliate of the Bank, including Home Federal
Corporation, with respect to employment of the Executive and supersedes any and
all prior understandings, written or oral between the Executive, the Bank and
any affiliate of the Bank, including Home Federal Corporation. This Agreement
may not be amended, waived, discharged or terminated orally, but only by an
instrument in writing; and shall be governed by the laws of Maryland.
10. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be deemed
severable from the remainder of this Agreement, and the remaining provisions
contained in this Agreement shall be construed to preserve to the maximum
permissible extent the intent and purposes of this Agreement. Any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
11. Regulatory Actions. The following provisions shall be applicable to
the parties to the extent that they are required to be included in employment
agreements between a savings association and its employees pursuant to Section
563.39(b) of the Regulations Applicable to all Savings Associations, 12 C.F.R.
Section 563.39(b), or any successor thereto, and shall be controlling in the
event of a conflict with any other provision of this Agreement.
(a) If the Executive is suspended from office and/or temporarily prohibited
from participating in the conduct of the affairs of F&M Bancorp or the Bank
pursuant to notice served under Section 8(e)(3) or Section 8(g)(1) of the
Federal Deposit Insurance Act ("FDIA")(12 U.S.C. Section 1818(e)(3) and
1818(g)(1)), the obligations of F&M Bancorp and the Bank under this Agreement
shall be suspended as of the date of service, unless stayed by appropriate
proceedings. If the charges in the notice are dismissed, F&M Bancorp and the
Bank may, in their discretion: (i) pay the Executive all or part of the
compensation withheld while their obligations under this Agreement were
suspended, and (ii) reinstate (in whole or in part) any of their obligations
which were suspended.
(b) If the Executive is removed from office and/or permanently prohibited
from participating in the conduct of the affairs of F&M Bancorp or the Bank by
an order issued under Section 8(e)(4) or Section 8(g)(1) of the FDIA (12 U.S.C.
Section 1818(e)(4) and (g)(1)), all obligations of F&M Bancorp and the Bank
under this Agreement shall terminate as of the effective date of the order, but
vested rights of the Executive and F&M Bancorp and the Bank as of the date of
termination shall not be affected.
(c) If F&M Bancorp or the Bank is in default, as defined in Section 3(x)(1)
of the FDIA (12 U.S.C. Section 1813(x)(1)), all obligations under this
Agreement shall terminate as of the date of default, but vested rights of the
Executive and F&M Bancorp or the Bank as of the date of termination shall not
be affected.
(d) All obligations under this Agreement shall be terminated pursuant to 12
C.F.R. Section 563.39(b)(5) (except to the extent that it is determined that
continuation of the Agreement for the continued operation of the Bank is
necessary): (i) by the Director of the OTS, or his/her designee, at the time
the Federal Deposit Insurance Corporation ("FDIC") enters into an agreement to
provide assistance to or on behalf of the Bank under the authority contained in
Section 13(c) of the FDIA (12 U.S.C. Section 1823(c)); or (ii) by the Director
of the OTS, or his/her designee, at the time the Director or his/her designee
approves a supervisory merger to resolve problems related to operation of the
Bank or when the Bank is determined by the Director of the OTS to be in an
unsafe or unsound condition, but vested rights of the Executive and the
Employers as of the date of termination shall not be affected.
12. Regulatory Prohibition. Notwithstanding any other provision of this
Agreement to the contrary, any payments made to the Executive pursuant to this
Agreement, or otherwise, are subject to and conditioned upon their compliance
with Section 18(k) of the FDIA (12 U.S.C. Section 1828(k) and any regulations
promulgated thereunder.
13. Obligation in Event of Regulatory Prohibition. In consideration for the
Executive's execution of this Agreement and the relinquishing of the
Executive's rights under his employment agreements dated March 21, 1996 with
Home Federal Savings Bank and Home Federal Corporation, F&M Bancorp hereby
guarantees the Executive that if any benefit or payment to which the Executive
is otherwise entitled under this Agreement is disallowed or otherwise denied by
any regulatory action or prohibition, F&M Bancorp shall pay the Executive any
sums contemplated by this Agreement that the Bank shall be unable to pay or
shall be prohibited from paying.
14. Governing Law and Submission to Jurisdiction. This Agreement shall be
governed by, and construed and enforced in accordance with, the laws of the
State of Maryland, without giving effect to the principles of conflicts of law
thereof. Each of the parties hereby irrevocably submits to the jurisdiction of
the Circuit Court of Washington County or any Federal court sitting in the
State of Maryland for purposes of any controversy, claim or dispute arising out
of or related to this Agreement and hereby waives any defense of an
inconvenient forum and any right of jurisdiction on account of the place of
residence or domicile. For the purpose of expediting the resolution of any such
claim or dispute, the parties hereby waive trial by jury.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
duly executed and delivered under seal, by its authorized officers or
individually, on the date first above written.
ATTEST/WITNESS: F&M BANCORP
/s/Xxxx Xx Xxxx By /s/Xxxx X. Xxxxxx (SEAL)
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
ATTEST/WITNESS: HOME FEDERAL SAVINGS BANK (the "Bank")
/s/Xxxxx X. Xxxxx By /s/Xxxxxxxx X. Xxxxxxxxx (SEAL)
Name: Xxxxxxxx X. Xxxxxxxxx
Title: Chairman
/s/Xxxxxx X. Xxxx /s/Xxxxxxx X. Xxxxxxx (SEAL)
Xxxxxxx X. Xxxxxxx, Xx. (the "Executive")
