Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS AGREEMENT is effective as of the 31st day of December, 2005,
between JAMES MONROE BANCORP, INC. (the "CORPORATION"), a corporation organized
and existing under the laws of the Commonwealth of Virginia, with principal
offices at 3033 Wilson Boulevard, Arlington, Virginia 22201, JAMES MONROE BANK
(the "BANK"), a Virginia commercial bank wholly owned by the Corporation, and
JOHN R. MAXWELL ("MAXWELL"), also referred to below, collectively as the
"parties" and, individually, as a "party."
WITNESSETH THAT, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto agree as follows:
1. EMPLOYMENT.
(a) Commencing January 1, 2006, and continuing through
December 31, 2007, and from year to year thereafter until terminated under the
provisions of paragraph 5 below, Maxwell shall be employed by the Bank as its
President and Chief Executive Officer. As President and Chief Executive Officer,
there shall be no more senior officer of the Bank and Maxwell shall report
exclusively to, and Maxwell shall be managed exclusively by, its Board of
Directors consistently with the terms of this Agreement. The Board of Directors
of the Bank shall not, without Maxwell's approval or without cause, elect any
person to a corporate position superior to any of the positions held by Maxwell
on June 8, 1998, or remove him from the offices of President and Chief Executive
Officer of the Bank, or in any other way fail to maintain Maxwell in the then
highest executive position in the Bank's organization. Maxwell's duties as
President and Chief Executive Officer shall be those normally undertaken by
Presidents and Chief Executive Officers of banks similar to the Bank in nature
and size at the time he exercises such duties. Additionally, in exercising his
said duties, Maxwell shall have such authority and discretion to make decisions
binding upon the Bank as are reasonable and consistent with the good faith
discharge of said duties.
(b) During the term of this Agreement, Maxwell shall also
serve as the President and Chief Executive Officer of the Corporation. As
President and Chief Executive Officer, there shall be no more senior officer of
the Corporation, and Maxwell shall report exclusively to, and Maxwell shall be
managed exclusively by, its Board of Directors. The Board of Directors of the
Corporation shall not remove him from the offices of President and Chief
Executive Officer of the Corporation, or in any other way fail to maintain
Maxwell in the then highest executive position in the Corporation's
organization.
2. COMMITMENT OF EXECUTIVE. During the term of this Agreement, Maxwell
shall faithfully and diligently discharge his duties and responsibilities, shall
use his best efforts consistent with the terms of this Agreement, and shall
devote all of his business time and attention to the affairs of the Bank, except
for any period(s) of time during which Maxwell's ability to discharge any of
such duties and responsibilities and devote such time and attention are impaired
as a result of a mental or physical disability of his, or he is on vacation,
holiday or other leave, or as otherwise agreed by the Board of Directors. The
obligations of this paragraph shall not be construed to mean that Maxwell shall
not be a director of any other corporation, or be associated in any way
whatsoever with any educational, charitable, civic, social, recreational, youth,
sports or other organization or endeavor. Provided, however, during the time of
his employment under this Agreement, Maxwell shall not be employed by any
organization licensed as a bank by the Commonwealth of Virginia or the United
States of America anywhere except by the Bank or a subsidiary or affiliate of
the Bank.
3. COMPENSATION.
(a) During the period commencing January 1, 2006 and
concluding December 31, 2006, the Bank shall pay to Maxwell a base salary of Two
Hundred Fifty Thousand Dollars ($250,000.00). As of January 1, 2007, and again
as of January 1 of each succeeding year during the term of this Agreement,
Maxwell's annual base salary for the twelve (12) month period commencing on each
such date shall be an amount of money as determined by the Board of Directors
with due consideration of, among other things believed relevant thereto by the
Board of Directors, (1) Maxwell's duties, responsibilities and performance
during the immediate preceding twelve (12) month period and those expected of
him during the then commencing twelve (12) month period, as President and Chief
Executive Officer of the Bank, and (2) salaries of persons serving as chief
executive officers of other banks having an asset size or other characteristics
similar to the Bank as may be reported in salary surveys or otherwise concerning
chief executive officers in the banking industry (including, but not limited to,
the Virginia Bankers Association's Annual Salary Survey Results publication).
(b) Salary as provided above will be payable less appropriate
deductions as required by law, or otherwise permitted by Maxwell, and shall be
paid in appropriate installments to conform with the Bank's regular payroll
dates.
(c) Beginning with and for calendar year 2006 and thereafter,
the Bank shall pay to Maxwell a bonus with respect to his performance for the
Bank during such calendar year. The total bonus as to which Maxwell shall be
eligible to receive for any calendar year after 2006 shall be established in the
discretion of the Board of Directors after consultation with and due
consideration of Maxwell's views thereon, and Maxwell shall be apprized of such
eligible bonus amount and the aforesaid objective criteria, in writing, during
the last calendar quarter of each of such year.
4. OTHER BENEFITS.
(a) During the term of this Agreement, the Bank shall pay the
premiums on a term life insurance policy(ies) on the life of Maxwell, which
policy(ies) shall be owned by Maxwell, in the face amount of Two Million Five
Hundred Thousand Dollars ($2,500,000.00), and for years beginning January 1,
2006 and on each succeeding January 1, the face amount of such policy shall be
increased in the same proportion as Maxwell's base salary is increased under
this Agreement for the year commencing on that January 1. Further, the said term
life insurance policy shall be obtained from an insurance company selected by
Maxwell, and the beneficiary(ies) thereon shall be determined by Maxwell and
there shall be no restraint against Maxwell retaining such policy after the
expiration of the term of this Agreement, at his own expense, should he choose
to do so.
(b) During the term of this Agreement, the Bank shall furnish
an automobile owned or leased by the Bank for Maxwell's use for any purpose
whatsoever, and the Bank shall pay an automobile expense allowance agreed to by
Maxwell and the Board of Directors for fuel, maintenance and replacement parts
and consumables, repairs and all other costs incidental to the use or operation
of the car. The Bank shall maintain reasonable insurance coverage on said
vehicle at its expense for the benefit of Maxwell. The make and type of
automobile shall be consistent with the positions of Maxwell with the Bank based
on the discretion of the Board of Directors.
(c) The Corporation had previously granted Maxwell the option
to acquire up to Thirty-Six Thousand, Eight Hundred and Eighty (36,880) shares
of the Corporation's common stock at the price of Ten Dollars ($10.00) per share
(prior to the Corporation's common stock split). This grant is exercisable, in
whole or in part, during the period it is outstanding, subject to the terms of
the James Monroe Bank 1998 Stock Option Plan, as adopted by the Corporation. It
is intended that such options be "non-qualified stock options" within the terms
of such Plan and the Internal Revenue Code and, on exercise, the Corporation
shall reimburse Maxwell for any income taxes payable by him as an incident of
such exercise up to the amount of the tax benefit to be received by the
Corporation as a result of the exercise by Maxwell of any of said options.
Additionally, if the Corporation seeks or is required to register any of its
securities under the Securities Act of 1933, as amended, or file reports under
the Securities Exchange Act of 1934, as amended, with the U.S. Securities and
Exchange Commission, it shall, at its expense, cause to be registered, without
restrictions thereon (except as may be required by law), all shares of stock
acquired by Maxwell, upon his exercise of the said non-qualified options with
respect thereto.
(d) Maxwell shall be reimbursed for reasonable travel and all
other expenses incurred or paid by Maxwell and which he considers in accordance
with the Bank's policies and in his discretion to be reasonable and proper in
connection with the performance of his services under this Agreement, upon
presentation of expense statements or vouchers or such other supporting
information as may from time to time be requested by the Board of Directors.
(e) In the event of Maxwell's inability to perform his duties
due to illness or incapacity, the Bank shall continue his full base salary for a
period of three (3) months from the commencement of said disability.
Additionally, for the subsequent three (3) month period, the Bank shall pay to
Maxwell that portion of his base salary such that the total amount received by
Maxwell pursuant to this sentence plus the amount, if any, received by Maxwell
pursuant to the Bank's income disability policy (if such policy exists) equals
his full base salary for said subsequent three (3) month period. Thereafter,
Maxwell shall only be entitled to receive payments pursuant to the Bank's income
disability policy, if such policy exists, except without regard to the
$5,000.00/month ceiling limitation.
2
(f) Maxwell shall be entitled to participate in and enjoy
according to Bank policy any and all pension, retirement, profit-sharing, stock
purchase, stock option, life insurance, accident insurance, medical
reimbursement, health insurance or hospitalization plan, cafeteria plan,
deferred compensation plan, vacations, holidays and other leave and any other
fringe benefits in which any other employee or executive of the Bank is eligible
to participate and entitled by Bank policy to enjoy.
5. TERM AND TERMINATION.
(a) This Agreement shall be effective as of December 31, 2005,
and shall remain in effect through December 31, 2007, and from year to year
thereafter, unless terminated as provided herein.
(b) Either party may terminate the Agreement as of December
31, 2005, or as of the end of any subsequent one (1) year period, by giving
written notice of termination to the other party not less than ninety (90) days
prior to the intended date of termination.
(c) This Agreement shall terminate upon the death of Maxwell.
(d) This Agreement shall terminate in the event of the
permanent disability of Maxwell, which shall mean a disability due to physical
or mental illness or incapacity resulting in Maxwell's inability to perform each
and every one of his duties as President and Chief Executive Officer of the Bank
for a period of six (6) consecutive months, or for an aggregate period of nine
(9) months, or more, in any twelve (12) month period during the term of this
Agreement, as determined by a physician selected by Maxwell and the Board of
Directors of the Bank (who shall cooperate in good faith with each other to
choose), it being understood and agreed that if Maxwell can perform any of his
said duties, then he shall not be considered permanently disabled for purposes
of this paragraph 5(d).
(e) This Agreement shall terminate in the event of Maxwell's
"Dismissal for Just Cause" as next defined, unless cured by Maxwell as provided
in subparagraph 5(e)(2) below.
(1) "Dismissal for Just Cause" shall exclusively mean
a termination of Maxwell's employment because of Maxwell's personal dishonesty,
willful misconduct, breach of fiduciary duty involving personal profit,
intentional failure to perform his duties as President and Chief Executive
Officer, willful violation of any law, rule or regulation of any governmental
agency having jurisdiction over Maxwell, other than traffic violations or
similar offenses, but including Maxwell's willfully causing the Bank to violate
any final cease or desist order issued against the Bank by a bank regulator
having authority and jurisdiction to issue such final order. In no event shall
failure to perform his said duties as a result of, or in connection with, any
physical or mental disability constitute just cause.
(2) Prior to Maxwell's Dismissal for Just Cause, the
Bank shall provide written notice of its reasons as to why it believes such
cause exists and Maxwell shall have thirty (30) days from receipt of such notice
to effect a cure of same.
(f) This Agreement shall terminate at the option of Maxwell
upon or within twelve (12) months after a Change of Control of the Bank as
defined in subparagraph 5(f)(1).
3
(1) For the purposes of this Agreement, the term
"Change in Control" means any one of the following events occurring during the
term of this Agreement and subsequent to December 31, 2005: (i) the acquisition
by any person or by persons acting as a "Group" (within the meaning of Section
13(d) of the Securities Exchange Act of 1934) of ownership of, holding or power
to vote more than 51% of the voting stock of the Bank; (ii) the acquisition by
any person or by persons acting as a Group of the power to control the election
of a majority of the members of the Bank's Board of Directors; (iii) the
exercise of a controlling influence over the management or policies of the Bank
by any person or by persons acting as a Group; or (iv) the failure of Continuing
Directors (as next defined) to constitute at least two-thirds of the Board of
Directors of the Bank during any period of twenty-four (24) consecutive months.
For purposes of this Agreement, "Continuing Directors" shall mean only those
individuals who were members of the Board of Directors on December 31, 2005, and
those other individuals whose election or nomination for election as a member of
said Board was approved by a vote of at least two-thirds of the Continuing
Directors then in office on said Board. For purposes of this subparagraph
5(f)(1) only, the term "person" refers to a human being or a corporation,
partnership, trust, association, joint venture, pool, syndicate, sole
proprietorship, unincorporated organization, or any other form of entity not
specifically listed herein.
6. SEVERANCE UPON TERMINATION AND RESTRICTIVE COVENANT.
(a)(1) If Maxwell's employment under this Agreement, or this
Agreement itself is terminated as a result of the Bank's or the Corporation's
breach of this Agreement, or if Maxwell chooses to terminate his employment
under this Agreement as a result of the Bank's or the Corporation's breach of
any one or more of the Bank's or the Corporation's obligations under this
Agreement, then, as liquidated damages, and in lieu of any other further
payments which Maxwell would be otherwise entitled to receive under paragraphs 3
and 4 (other than 4(c)) of this Agreement), the Bank shall (1) pay Maxwell for a
period equal to twelve (12) months, at the full amount of base salary, bonus and
other benefits to which he was entitled immediately before such termination, as
provided in this Agreement (said sum to be paid, at the option of Maxwell, in
either one lump sum within thirty (30) days of such termination, or in periodic
equal monthly payments over the following twelve (12) month period), and (2)
provide Maxwell executive outplacement assistance from an organization of
Maxwell's choice and the cost therefor, up to an amount equal to eighteen
percent (18%) of the annual base salary to which he was entitled under this
Agreement immediately before such termination, shall be borne by the Bank. In
the event the monies payable to or for Maxwell pursuant to the foregoing
provisions of this paragraph 6(a)(1) result in a Federal excise tax obligation
on Maxwell with respect to such payments, then, at Maxwell's discretion, the
total amount of such payments shall be reduced to the maximum amount that may be
paid to or for Maxwell without causing him to incur any such Federal excise tax
obligation thereon.
(a)(2) If Maxwell's employment under this Agreement or this
Agreement itself is terminated as a result of the Bank's or the Corporation's
breach of this Agreement, or Maxwell terminates this Agreement as a result of
the Bank's or the Corporation's breach of this Agreement, or if Maxwell
terminates this Agreement pursuant to the provisions of paragraph 5(f) above,
Maxwell shall be under no restriction whatsoever as to the nature of the
business or employment activities in which he may engage after termination of
his employment.
(b)(1) In the event Maxwell's employment is terminated by the
Bank, pursuant to the provisions of paragraph 5(b) above, for a period of twelve
(12) months after said employment termination, Maxwell shall not Compete with
the Bank, unless the Bank otherwise agrees in writing to waive application of
this noncompetition provision or to reduce the period of its duration. For
purposes of this Agreement, the term "Compete" shall mean Maxwell being employed
by, or consulting with, or providing services for, any organization licensed as
a bank by the Commonwealth of Virginia or the United States of America, if in
connection with such employment, consultation or provision of services, the
majority of Maxwell's working hours are consumed at an office of such bank in
the Counties of Arlington, Virginia, Fairfax, Virginia, Loudoun, Virginia, or
such other county in which the Bank may have a branch or loan production office
where Bank employees are regularly present at such branch or loan production
office as of the date Maxwell's employment under this Agreement is terminated.
(b)(2) For the duration, up to twelve (12) months of the
applicability of this noncompetition provision to Maxwell, the Bank shall
continue to pay Maxwell the full amount of base salary, bonus and other benefits
to which he was entitled immediately before such termination, as provided in
this Agreement, in equal monthly payments.
(c) In the event Maxwell's employment is terminated by Maxwell
pursuant to the provisions of paragraph 5(b) above, or by the Bank pursuant to
the provisions of paragraph 5(e) above, Maxwell shall not Compete with the Bank
for a period of twelve (12) months after said employment termination. In such
event, no severance shall be payable to Maxwell after the termination of his
employment.
4
(d) The options and other benefits granted to Maxwell under
the provisions of paragraph 4(c) above and all other obligations of the Bank to
Maxwell accrued but unsatisfied prior to a termination of this Agreement shall
remain in full force and effect until satisfied.
7. CONFIDENTIALITY. Maxwell agrees that, except as may be in his good
faith judgment required to be disclosed to a third party in the discharge of
Maxwell's duties under this Agreement, he will regard as confidential, and not
intentionally and knowingly disclose to a third party without written authority
from the Bank, information pertaining to the business of the Bank, its
customers, subsidiaries and affiliates that is obtained by him during the course
of his employment with the Bank, which is indeed confidential and proprietary to
the Bank. For purposes of this Section 7, any information which (I) was known by
Maxwell, or became known by him, by way of his own discovery independently of
his employment with the Bank or by way of a communication Maxwell received from
a third party which has no obligation of confidentiality to the bank regarding
such information; (ii) was disclosed by the Bank to a third party free of any
obligation of confidentiality to the Bank, (iii) was, without violating any
obligation of confidentiality it had to the Bank, communicated by a third party
to any other person or entity; or (iv) is or comes into the public domain
through no fault of Maxwell, shall not be considered confidential or proprietary
to the Bank. This Section 7 shall not be construed as restricting Maxwell from
disclosing information which is confidential and proprietary to the Bank to
employees of the Bank or others engaged by the Bank who reasonably require
access to such information in order to discharge their duties to the Bank.
8. ELECTION TO BOARD OF DIRECTORS. Maxwell shall stand for and be
endorsed and recommended by the Bank and the Corporation for election to its
Board of Directors for annual terms coinciding as closely as possible with those
specified in this Agreement.
9. GOOD FAITH AND REASONABLENESS. Any matters which, in connection with
or pursuant to this Agreement, are to be determined by the Board of Directors,
shall be determined in good faith and reasonably in light of the circumstances
of those matters. In the event Maxwell disagrees with the determination by the
Board of Directors on any such matter, he shall bring that disagreement to the
attention of the Board of Directors and, whereupon, the parties shall attempt,
in good faith, to resolve their said differences through a mediator of mutual
selection, or in the event such selection is not made within thirty (30) days of
the said notice from Maxwell, or if the results of the said good faith effort
with a mediator are not satisfactory to either party, the dispute shall be
subject to arbitration under paragraph 14 hereof.
10. ASSIGNMENT; BINDING EFFECT. This Agreement is personal in nature as
to each of the parties hereto. Except by amending this Agreement, neither party
may assign or transfer this Agreement, assign or transfer rights under this
Agreement, or delegate obligations under this Agreement. This Agreement shall be
binding upon the successors and assigns of the Bank and the Corporation. This
Agreement shall be binding upon and shall inure to the benefit of the heirs,
executors, administrators, guardians, and other personal representatives of
Maxwell.
11. ENTIRE AGREEMENT. This instrument contains the entire agreement of
the parties relating to the subject matter hereof and supersedes and cancels all
prior written and oral agreements and understandings between the parties
relating to the subject matter of this Agreement, which are not set forth
herein. No amendment or modification of this Agreement shall be valid unless
made in writing and signed by the parties hereto. No term or condition of this
Agreement shall be deemed to have been waived except by written instrument of
the party charged with such waiver.
12. SEVERABILITY. In the event any one or more of the provisions of
this Agreement shall for any reason be held invalid, illegal or unenforceable in
any particular circumstance by any tribunal of competent jurisdiction, such
provision shall be valid in other circumstances and for the particular
circumstance the remaining provisions of this Agreement shall be read and
construed as though the said invalid, illegal or unenforceable provision had
never been a part hereof.
13. GOVERNING LAW. This Agreement will be construed in accordance with
the laws of the Commonwealth of Virginia, excluding the choice of law provisions
thereof.
5
14. NOTICES. All notices to be sent to either party by the other party
hereto pursuant to this Agreement shall be sent by registered or certified mail
to the following respective addresses:
(a) Bank. If to the Bank, addressed to it at:
3033 Wilson Boulevard
Arlington, Virginia 22201
With a required copy to:
Chairman of the Board
David W. Pijor, Esquire
10482 Armstrong Street
Fairfax, Virginia 22030
(b) Maxwell. If to Maxwell, addressed to him at:
4708 Brentwall Court
Chantilly, Virginia 20152
With a required copy to:
Steve A. Mandell, Esquire
The Mandell Law Firm
A Professional Corporation
8133 Leesburg Pike, Suite 630
Vienna, Virginia 22182-2706
15. ARBITRATION. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by binding
arbitration in Arlington County, Virginia, in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first above written.
_________________________ _______________________________
Witness John R. Maxwell
JAMES MONROE BANK
a Virginia Corporation
_________________________ By: ___________________________
Attest David W. Pijor, Chairman
JAMES MONROE BANCORP, INC.
a Virginia Corporation
_________________________ By: ___________________________
Attest David W. Pijor, Chairman
6